IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 5022 OF 2008 WRIT PETITION NO. 5022 OF 2008 WRIT PETITION NO. 5022 OF 2008 Shri Sunil Raghunath Pawar. ... Petitioner. V/s. The Municipal Corporation of Greater Mumbai and others. ... Respondents. Madhav Jamdar for the petitioner. A.J.Bhor for the respondents. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 12th September 2008. DATED: 12th September 2008. DATED: 12th September 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the petitioner and learned counsel for the respondent Corporation. Perused record. 2. This petition is directed against the order dated 21st June, 2008, whereby the appeal was dismissed and the order of the Inquiry Officer of the respondent Corporation dated 8th February, 2007, directing the petitioner to vacate the subject premises, under section 105 of the Municipal Corporation Act, came to be upheld. 3. I was taken through the impugned order. According to the petitioner, subject premises was originally allotted to one Shri Yesu Bhika Joshi, maternal grandfather of the present petitioner somewhere in the year 1950 since he was in the employment of the respondent Corporation. 4. In the year 1967, Shri Yesu Bhikaji Joshi retired from service of the Corporation. However, it appears that his son Shri Gangaram Yesu Joshi was in the employment of the Corporation. With the result, he continued to occupy the subject premises even after the death of Shri Yesu Joshi. 5. Shri Gangaram Joshi resigned in the year 1972. At the relevant time, one Shri Raghunath Pandurang Pawar, son-in-law of Shri Yesu Joshi and brother-in-law of Gangaram Joshi was also staying with Gangaram. He was also in the employment of the Corporation. It appears that even after resignation of Shri Gangaram from the employment of the Corporation, Raghunath, father of the petitioner continued to occupy the subject premises without any authority from the Corporation. 6. Shri Gangaram Joshi died in the year 1991. Shri Raghunath while staying with Gangaram had applied for allotment of some other pitch. It was allotted to him, but, according to the petitioner, who is son of Raghunath, the possession of this newly allotted pitch - 3 - was never given to Shri Raghunath since it was in possession of some other person. Consequently, Raghunath could not get possession of the newly allotted pitch, allotted to him by the Corporation in the year 1983. 7. It is an admitted position by the learned counsel for the petitioner that in the year 1991 civil suit was filed by the petitioner in the City Civil Court against the Corporation and that suit was dismissed. If this be so, in the suit it was open for the petitioner to claim relief of possession of the pitch which was allotted to his father. It appears that no such relief was claimed. 8. On being asked, learned counsel for the petitioner could not produce plaint for want of availability. He prayed for time to produce copy of the plaint. It was not necessary to grant time. I will assume for a moment that such relief was claimed, but no such relief appears to have been granted. Had it been granted, then the petitioner would have been in possession of the said pitch. He would not have filed this petition. If no such relief was claimed, then absence of prayer would result in omission to claim relief though available. It will be hit by the - 4 - provision of order 2 rule 2 of Code of Civil Procedure, 1908. The petitioner now would not be entitled to claim the relief so omitted. 9. Be that as it may, in reply to this petition, the respondent Corporation has filed affidavit dated 1st September, 2008; wherein in para-6 the following allegations are made: " I say that as regards to the assurance of alternate pitch, I humbly say and submit that though the Petitioner’s father was not at all entitled and had no right to get the said pitch, these respondents sanctioned the pitch bearing No.47-M-8 at Govandi on humanitarian ground and on the representation of Local Councillor in the year 1983. I crave leave to refer to rely upon the extract of Demand Register showing the entry of allotment of the said pitch as and when produced. It appears from the zerox copies of some documents that Raghunath P. Pawar i.e. father of the Petitioner accepted the said pitch and given to 3rd person in order to earn money. From the record, it appears that the rent is being paid in the name of Raghunath P. Pawar for the hut on pitch No.47-M-8 which is evident that the said pitch was duly accepted by Raghunath Pawar. This is an attempt to deceive the Corporation. The concerned officer attached to M/East Ward of these Respondents visited the site where the alternate pitch was allotted to Raghunath Pawar wherein it is found that one Shri Mohommed Rafi Farooque is residing in the said hut at Govandi. On enquiry about Raghunath Pawar, the occupant handed over zerox copies of Affidavits, extended and entered into between Raghunath Pawar and Sarjerao Godse dated 27th November, 1990 and other Affidavits. It is thus evident that Raghunath Pawar has not only misleaded to these Respondents, moreover deceived the local body. I crave leave to refer to rely upon the zerox copies of the said affidavits as and when produced. The petitioner has all through out misled the authorities - 5 - stating that he is entitled for alternate pitch. The Petitioner has not approached to this Hon’ble Court with clean hands therefore, the Writ Petition deserves rejection." 10. On being asked, the learned counsel appearing for the respondent- Corporation has produced affidavit duly affirmed by Shri Raghunath Pawar which carried his thumb impression. This document was given to the Corporation by one Mohommed Rafi Farooqui who is in possession of the pitch allotted to Shri Raghunath. In this affidavit, it is stated by Raghunath that the subject premises was handed over by him to one Sarjerao Godse. Shri Mohommed Rafi claims that he took this from Mr.Sarjerao Godse. It is, thus, clear that the father of the present petitioner was put in possessionof the pitch allotted to him and he had handed it over to third party during his lifttime. It is, thus, clear that Raghunath Pawar had parted with possession of the pitch allotted to him by the Corporation in favour of some other person, may be for consideration. During his lifetime, he did not initiate any proceeding for possession of the newly allotted pitch to him for the obvious reasons. 11. The learned counsel appearing for the petitioner has streneously challenged genuineness of this document and went on to urge that even the thumb - 6 - impression does not appear to be that of Shri Raghunath Pawar. 12. At any rate, the rival submissions leading to the genuineness of the affidavit has given rise to the disputed questions of fact, which cannot be investigated in writ jurisdiction of this Court. Considered from either of the angles, this petition is without any merit. Petitioner has no legal right to be in possession of the Corporation premises. 13. In the result, petition is dismissed in limine with no order as to costs. 14. At this stage, learned counsel for the petitioner, after taking instruction from his client, who is present in the Court, seeks three months time to vacate the premises. Accordingly, petitioner is granted three months time to vacate the subject premises, subject to his furnishing, within two weeks from today, an undertaking to vacate the premises. The undertaking shall also bear signatures of all the adult members of the family of the petitioner in addition to the signature of the petitioner with specific mention therein that none of them shall create any third party interest in the subject - 7 - premises. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)