As times are changing, more especially when there is a growing tendency discernible as regards violation of the development control regulations and the Municipal laws, a liberal approach in the matter as to who can be a party to the suit need be taken so that the lis is adjudicated in a proper and fair manner. However, it is not in all cases that a person at whose behest or persuasion notice is issued under Section 351 can be allowed to be impleaded as a party to a particular suit, the Court in such a case has to exercise its discretion vested in it under Order I Rule 10 of the Code of Civil Procedure as there may be cases where for malafide reasons or to settle personal scores that a party might want to intermeddle in a particular suit by filing an application for impleadment. However, in such cases the Court would undoubtedly have to exercise its discretion, and therefore it cannot be laid down as a general proposition that all those persons at whose behest the
notices are issued under Section 351 or the provisions of the MRTP Act are to be joined as parties to a suit if an Application is made by them in that behalf. 16 However, in the facts and circumstances of the present case, as indicated above, the order of the trial Court cannot be faulted with.1
Bombay High Court
Aijaz @ Azaz Mohammed Shaikh vs Municipal Corporation Of Greater on 22 December, 2011
Bench: R. M. Savant
1 Rule, with the consent of the parties made returnable forthwith and heard.
2 The above Petition arises out of the Application for impleadment being Chamber Summons No.769 of 2011 filed by Respondent No.2 herein being allowed by the impugned order dated 10/10/2011 passed by the learned Judge, City Civil Court, Greater Bombay.
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3 Shorn of unnecessary details, a few facts can be stated thus : The suit in question i.e. Short Cause Suit No.1444 of 2011 has been filed by the Petitioner herein taking exception to the threatened action of demolition of structure being Room No.31, 3rd Floor, 123, Masjid Street, Mumbai-400003 pursuant to the notice bearing No. C/BF/SEBII/351/3642/2011 dated 30/05/2011 issued under Section 351 of the Mumbai Municipal Corporation Act (for brevity's sake "The said Act") by the Assistant Commissioner of the Corporation. In the said suit the Plaintiff had applied for ad-interim relief which was refused by the City Civil Court resulting in filing of Appeal from Order by the Plaintiff being Appeal from Order No.908 of 2011. In the said Appeal from Order, it is the case of the Petitioner that some protection came to be granted to the Petitioner. The Respondent No.2 herein thereafter applied to the trial Court for being impleaded as a party Defendant by filing the said Chamber Summons No.769 of 2011. It was the case of the Respondent No.2 in the Affidavit in Support of the said Chamber Summons that she along with other tenants of the building situated at 81-83 Bapukhote Marg, Mumbai 400 003 are affected by illegal construction carried by the Petitioner on the 3rd floor. It is the case of the Respondent No.2 that she is occupying Room Nos. 7 and 8 on the 3rd floor of the building situated at 81-83 Bapukhote Marg, Mumbai 400 003 since 1994, and that the building of the Petitioner and Respondent No.2 are adjacent to each other, with only a house 3 wp-9622.11.sxw
gully separating the two of them. It is her case that the building No.123 wherein the Petitioner is residing originally consisted of two floors and there was an attic floor on 3rd floor level of the said building. It is her case that the attic floor which is on the 3rd floor level was illegally converted into a room by unauthorizedly covering and merging the entire open space with original attic floor space in the repair plans of the building No.123 sanctioned by MHADA. It is her case that due to illegal construction in the open space of the 3rd floor, privacy and safety of applicant and her family who are occupying Room Nos.7 and 8 on 3rd Floor of building No.81/83 is directly affected. It is further her case that her right to air and light as also that of the residents of her building is adversely affected. It is her case that she had issued a letter on 8/7/2009 to the Assistant Commissioner, C-Ward of the Corporation in respect of the unauthorized construction carried out by the Plaintiff. It is pursuant to the said letter that the action of issuing the notice under Section 351 of the said Act has been taken by the Corporation.
4 The said Chamber Summons was opposed by the Plaintiff by filing his reply. It is the case of the Plaintiff that the Respondent No.2 is in the habit of lodging false and frivolous complaints against the Plaintiff and other several persons for settling her personal score. It is further the case of the Plaintiff that the Respondent No.2 herself carried out illegal construction in the building wherein she is residing and on account of that illegal construction she is facing prosecution under the MRTP Act. It is his case that the Respondent No.2 is not 4 wp-9622.11.sxw
a necessary party to the said suit as she is not concerned with the suit property as she is neither the owner nor the resident of the said building. 5 The said Application being Chamber Summons No.769 of 2011 was considered by the trial Court, and as indicated above, by the impugned order dated 10/10/2011 was allowed. The gist of the reasoning of the trial Court, as can be seen from the impugned order, is that the said two buildings i.e. building No.81/83 in which the Respondent No.2 is residing, and the building No.123, wherein the offending structure is situated, are separated by a house gully and the back side of building No.123 falls on Northern side of building No.81/83, and therefore, the trial Court in view of the fact that the suit has been filed challenging the notice issued under Section 351 of the said Act in respect of the alleged unauthorized construction carried out by the Plaintiff, it would be necessary to join the Respondent No.2 as a party Defendant to the said Suit though the Respondent No.2 also claimed other reliefs, the trial Court did not deem it fit to grant the said reliefs. 6 Heard the learned counsel for the parties. 7 On behalf of the Petitioner it is contended by the learned counsel Shri Anil Singh that the Respondent No.2 is neither a necessary party nor a proper party to the said suit. The learned counsel would contend that the Respondent No.2 is neither the resident of the said building in which the 5 wp-9622.11.sxw
Plaintiff is residing nor is she the owner of the said building. The learned counsel would contend that if the Respondent No.2 has any grievance in respect of air and light she has to file an independent proceeding for the same, and for the said purpose she cannot be allowed to be impleaded in the suit in question. In so far as the issue as to whether the Respondent No.2 is a necessary party, the learned counsel would place reliance on the judgment of the Apex Court reported in 1992 SCC (2) 524 in the matter of Ramesh Hiranand Kundanmal v/s. Municipal Corporation of Greater Bombay and ors. The learned counsel for the Petitioner also placed reliance on the judgment of a learned Single Judge of this Court reported in 1998 BCR-2 530 in the matter of Shayam, Fatechand Shende v/s. Alka, Vinod Ganvir. The learned counsel by adverting to the information procured by the Plaintiff under the Right to Information Act would contend that the Respondent No.2 has herself carried out unauthorized construction for which she is being prosecuted under the MRTP Act. The learned counsel drew my attention to the letters which have been annexed to the Petition which have been obtained by the Plaintiff, under the Right to Information Act.
8 Per contra, it is submitted by Ms.Mahak Bookwala Shetty, the learned counsel appearing on behalf of the Respondent No.2, that in view of the fact that the action under Section 351 has been taken by the Corporation pursuant to the letter addressed by the Respondent No.2, she is a necessary party, as in spite of the correspondence that the Respondent No.2 had entered 6 wp-9622.11.sxw
into with the Corporation, no action was being taken earlier. The learned counsel would contend that since the buildings are standing side by side with only 5 to 6 feet gap between them, the unauthorized construction carried out by the Plaintiff has consequences for the Respondent No.2 inasmuch as the air and light of the Respondent No.2 in the building which is occupied by her across the building of the Plaintiff is affected. The learned counsel in support of her contention that the Respondent No.2 is a necessary party has relied upon the judgment of a learned Single Judge of this Court reported in 2004(2) Mh.L.J. 782 in the matter of Chandrakant Dharma Bhonu v/s. Pandurang Ramchandra Dandekar.
9 Having heard the learned counsel for the parties, I have given my anxious consideration to the rival contentions.
10 In the instant case the suit in question i.e. Short Cause Suit No. 1444 of 2011 has been filed by the Plaintiff challenging the notice issued under Section 351 of the said Act. The said notice is in respect of the alleged unauthorized construction carried out by the Plaintiff in the open space of the 3rd floor of the building No.123. There is no dispute about the fact that the Applicant i.e. the Respondent No.2 herein is residing in the adjoining building, and that the premises occupied by her are adjoining to the alleged authorized construction. It is the case of the Respondent No.2 that the said unauthorized construction is affecting the light and air of the Applicant ie. the Respondent 7 wp-9622.11.sxw
No.2. It is required to be noted that the Respondent No.2 had addressed two letters to the Assistant Commissioner of the Corporation. The first letter is the letter dated 8/7/2010 by which letter the Respondent No.2 called upon the Corporation to take urgent steps against the said unauthorized construction as the said unauthorized construction was directly affecting the rooms of the residents of the adjoining building No.123 disturbing their privacy and safety, besides causing nuisance. The said letter has been signed, apart from the Respondent No.2, by other residents of the building. The next letter is the letter dated 15/7/2010, which letter is in the nature of a reminder to the Corporation to take steps against the said authorized construction. It would be relevant to note that the response of the Corporation was received on 13/1/2011 by the letter addressed by the Assistant Engineer (B&F) C-Ward to the Respondent No.2 asking her to contact the Executive Engineer, MBRR Board in respect of the said grievance. The Respondent No.2 has thereafter addressed letters dated 8/2/2011 and 9/2/2011 to the Corporation once again requesting it to take action against the said unauthorized construction. The said letters have been signed by the Respondent No.2 as well as the other residents of her building. It appears that the Executive Engineer, MBRR Board (C1-2 Division) has by a letter dated 9/2/2011 addressed to the Assistant Commissioner of the Corporation informed the said officer in respect of the complaint of the Respondent No.2, and since the same is in respect of the alleged unauthorized construction, the Executive Engineer, MBBR Board by the said letter requested the Assistant Commissioner of the Corporation to take 8 wp-9622.11.sxw
steps against the unauthorized construction under the MRTP Act as the same falls within the jurisdiction of the Corporation. It appears that on account of the said persuasion of the Respondent No.2 that the action under Section 351 of the said Act has been taken by the Corporation. The said fact is also not seriously disputed by the learned counsel appearing for the Petitioner. 11 In the light of the aforesaid facts it would be gainful to refer to the judgment of a learned Single Judge of this Court in Chandrakant Bhonu's case (supra). The facts in the said case were that in spite of the representations made to the Corporation, the Corporation was not taking action against the unauthorized construction in question, resulting in the Petitioner in the said Petition Chandrakant being constrained to file a Petition in this Court seeking direction against the Corporation to take action against the unauthorized construction concerned therein. The Corporation accordingly, pursuant to the said directions, had issued a notice under Section 351 of the Corporation Act. The said notice was thereafter not taken to its logical conclusion by the Corporation resulting in a further Petition being filed by the Petitioner therein. The said notice came to be challenged by the Respondent in the said Petition by way of filing a Suit. In the said suit the Petitioner in the said Petition had made an Application for joining him as a party to the said Suit. The said Application was rejected by the trial Court on the ground that the Petitioner- Chandrakant was neither a necessary party nor a proper party. This Court, in the fact situation of the said case wherein the Petitioner had persuaded the 9 wp-9622.11.sxw
Municipal Corporation to take action and had even filed Petitions in this Court, held that the Petitioner was directly and substantially concerned with and affected by the proceedings before the City Civil Court for more than one reason, and therefore, allowed the said Petition and resultantly allowed the said Chamber Summons.
12 The facts of the said case are almost identical to the facts of the present case except to the extent that the Respondent No.2 had not filed any proceedings in this Court for taking action against the said unauthorized construction against the Corporation. However, the fact remains that it is on account of persuasion of the Respondent No.2 that ultimately a notice came to be issued by the Corporation to the Petitioner/Plaintiff. 13 Now coming to the judgment of the Ramesh Hiranand Kundanmal's (supra), the facts of the said case were that a notice under Section 351 had been issued to the licensee of the lessee on the plot on which Petrol Pump in question was being run. The notice was issued in respect of two chattels, the construction of which was allegedly carried out unauthorizedly. The licensee had filed a suit in which the lessee had made an application for being joined as a party. The said application was rejected on the ground that no prejudice would be caused to the lessee if the said chattels were demolished. The Apex Court held that the presence of the lessee for adjudication of the suit was not required as the lessee was neither a necessary 10 wp-9622.11.sxw
nor a proper party to the said suit.
In so far as the judgment of the learned Single Judge of this Court in Shayam, Fatechand Shende v/s. Alka, Vinod Ganvir (supra) is concerned, in the facts of the said case, the learned Single Judge was of the view that the Applicant in the said case was not a necessary or a proper party to the suit in question. The facts in the said case were that it was the case of the Applicant that in view of the unauthorized construction carried out in the passage, his right of way was affected. The learned Single Judge in the said fact situation had observed that the issue of the right of way was independent and different from the issue regarding construction being authorized or unauthorized. 14 In the instant case, as indicated above, it is on account of the persuasion of the Respondent No.2/Applicant that the notice under Section 351 has been issued by the Corporation, the same is borne out by the record. Since the buildings are standing side by side with only a house gully of about 5 to 6 ft separating the two of them, since it is the case of the Respondent No.2 that the alleged unauthorized construction in question being put on the same level as the premises occupied by the Respondent No.2, the same would have the effect of affecting the light and air of the Respondent No.2 and other occupants of the said building. The Respondent No.2 therefore can be said to be a person vitally interested in the subject matter of the said suit. This is not a case where a total stranger or third party is seeking to intermeddle in a suit 11 wp-9622.11.sxw
with ulterior motives. The Respondent No.2 in the capacity of a neighbour would be entitled to bring to the notice of the Court, the violation of the Municipal laws, or the development control regulations, which has the effect of affecting her rights. Though it is the case of the Petitioner that the proceedings under the MRTP Act have also been initiated against the Respondent No.2, in my view, the said fact would have no relevance in so far as Respondent No.2 being a party to the suit in question is concerned. In my view, therefore, the Respondent No.2/Applicant is a necessary party to the said suit.
15 As times are changing, more especially when there is a growing tendency discernible as regards violation of the development control regulations and the Municipal laws, a liberal approach in the matter as to who can be a party to the suit need be taken so that the lis is adjudicated in a proper and fair manner. However, it is not in all cases that a person at whose behest or persuasion notice is issued under Section 351 can be allowed to be impleaded as a party to a particular suit, the Court in such a case has to exercise its discretion vested in it under Order I Rule 10 of the Code of Civil Procedure as there may be cases where for malafide reasons or to settle personal scores that a party might want to intermeddle in a particular suit by filing an application for impleadment. However, in such cases the Court would undoubtedly have to exercise its discretion, and therefore it cannot be laid down as a general proposition that all those persons at whose behest the 12 wp-9622.11.sxw
notices are issued under Section 351 or the provisions of the MRTP Act are to be joined as parties to a suit if an Application is made by them in that behalf. 16 However, in the facts and circumstances of the present case, as indicated above, the order of the trial Court cannot be faulted with. In my view, there is no error committed by the trial Court for this Court to interdict in its Writ Jurisdiction under Article 227 of the Constitution of India. The above Writ Petition is accordingly dismissed.
Rule discharged with no order as to costs.
[R.M.SAVANT, J]
22nd December 2011
At this stage, the learned counsel for the Petitioner seeks stay of the operation of the instant order. In the facts and circumstances of the case, the operation of the instant order is stayed for a period of two weeks from date. [R.M.SAVANT, J]
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