1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 343 OF 2008 WRIT PETITION NO. 343 OF 2008 WRIT PETITION NO. 343 OF 2008 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. 2) Assistant Municipal Commissioner, (Market), Gr. Mumbai Corporation, B.M.C. Office, Croffered Market, M.J. Fule Market, Opposite Police Commissioner’s Office, Mumbai. 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 2 (W), Mumbai - 50. .. Respondents. Mr. G.N. Salunke for the Petitioner. Mrs.S.M. Modale for Respondents. CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. DATE: 3RD MARCH, 2009 DATE: 3RD MARCH, 2009 DATE: 3RD MARCH, 2009 ORAL JUDGMENT (Per J.N. Patel, J.) . Heard the learned counsel for the parties. 2. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India 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 (Market) MCGM. 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. 3 5427 of 2005). The suit was filed on the basis of the 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. 4. It is the case of the petitioner that pursuant to the liberty granted by the learned Single Judge to 4 make an application to the first respondent for grant of fresh licence/permission to carry on business, the 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. 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 5 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 respectively and the application made by the petitioner for further extension came to be rejected by letter dated 5.12.2005. 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 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 6 matter the petitioner chooses to file this writ 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 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. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.)