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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORIGINAL CIVIL JURISDICTION

WRIT PETITION (LODGING) NO. 2482 OF 2009

Bharati Dhanesh Goragandhi.

... PETITIONER

Vs.

The Commissioner,

Municipal Corporation of Brihanmumbai

and seven ors.

... RESPONDENTS

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Ms. Varsha Palav, Advocate for Petitioners.

Ms. S.M. Modale, Advocate for BMC.

Mr. Anand Grover, Advocate for the Respondent No.7.

Mr. G.G. Ketkar, first assistant to Court Receiver, present.

--------------

CORAM :

SMT. RANJANA DESAI, &

SMT. MRIDULA BHATKAR, JJ.

DATE : 17

th December, 2009.

P.C.

1

The petitioner is the mother of the 7

th respondent. There is a

long pending dispute between the petitioner and the 7

th respondent about

the properties left behind by the petitioner’s deceased husband. A suit

being Suit No. 1227 of 1997 is pending on the Original Side of this Court

in respect of the said properties (suit premises). On 20

th November,

1998, learned Single Judge of this Court appointed Receiver in respect of

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the suit properties. Learned Single Judge directed the Court Receiver

not to disposses any party, if it is in possession. The parties were

directed to approach the Court for appropriate direction in relation to the

custody and management of the suit properties. It appears to us that

none of the parties have approached the Court for any direction as

regards custody and management of the suit properties.

2

The grievance of the petitioner in this petition is that the 7

th

respondent has carried out illegal and unauthorized construction in the

premises which are the subject matter of this petition and which forms

part of the suit properties without requisite permission. It is also her case

that the 7

th respondent has amalgamated the shops and the office without

permission from this court. According to the petitioner, permission of this

court was necessary because the property is custodia legis. Certain

photographs are shown to us in support of this submission. The

petitioner has in the circumstances inter alia sought an order restraining

the 7

th respondent from carrying out any unauthorized construction. The

Receiver has submitted his report dated 7/12/09 in this court. Admittedly

the Receiver has also not approached the court for appropriate orders.

3

This petition involves extremely disputed questions of facts

which cannot be dealt with by us in our writ jurisdiction. The parties may,

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however, if they so desire, approach, the court which is seized of the

pending suit and obtain necessary orders. The Receiver must also

submit a detailed report before that court. It is not disputed that the 7

th

respondent was carrying out the business of Eating House and Juice

Centre in the premises which are the subject matter of this petition.

Learned Counsel for the petitioner has pointed out that the permission /

licence granted by the Municipal Corporation to the 7

th respondent has

lapsed and hence the petitioner can no longer carry out the said

business. Mr. Grover, learned counsel for the 7

th respondent states that

the 7

th respondent shall not carry out the said business till such time as

he gets his licence renewed from the Municipal Corporation.

4

In the circumstances of the case, in our opinion, the petition

can be disposed of by passing following order:

a)

The 1

st Assistant to the Court Receiver, who is present in

the court states that the Court Receiver will submit a

detailed report to the court which is seized of the pending

suit in respect of the suit properties and obtain necessary

orders. He states that, that would obviously include the

premises which are the subject matter of the present

petition.

b)

Learned counsel for the parties state that they will adopt

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appropriate proceedings within four weeks from today

before the court which is seized of t