Bombay High Court
Aijaz @ Azaz Mohammed Shaikh vs Bombay (Brihanmumbai on 22 December, 2011
Bench: R. M. Savant
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lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9622 OF 2011
Aijaz @ Azaz Mohammed Shaikh ]
Adult, Indian Inhabitant, aged about ]
34 years, occupation : Service residing ]
at Room No.31, 123, Masjid Street, 3rd ]... Petitioner
Floor, Mumbai - 400 003 ] (Org. Plaintiff)
versus
1 Municipal Corporation of Greater ]
Bombay (Brihanmumbai ]
Mahanagarpalika) Mahapalika Marg,
Mumbai - 400 001. ]
]
2 Falaknoor wife of Arif Lakdawala ]
aged 52 years, Occ Housewife ]
Residing at Room No.7 & 8, 3 rd
]
Floor, 81/83, Bapu Khote Street ]
Mumbai - 400 003 ]... Respondents.
Mr. Anil Singh with Mr. Dilip H Shukla for the Petitioner.
Ms. Mahak Bookwala Shetty i/by Zohair & Co. for the Respondent No.2.
CORAM : R M SAVANT, J.
DATE : 22nd December 2011
JUDGMENT :
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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]
