The Bandra Holy Family Hospital ... vs The Municipal Corporation Of Gr. ...
2021 Latest Caselaw 8200 Bom

Megha                                        31_wpst_10427_2021.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                     WRIT PETITION (STAMP) NO.10427 OF 2021

The Bandra Holy Family Hospital
Society                                                  ...Petitioner
                      Versus
Municipal Corporation of Greater
Bombay and Ors.                                        ...Respondents
                                   ....
Mr. S.C. Naidu with Mr. Manoj Gujar, Mr. Aniketh Poojari, Mr.
Sudeshkumar Naidu i/b. M/s. C.R. Naidu and Co. for the Petitioner.
Mr. Jagdish Narayan Jayale for Respondent No.4.
Mr. Santosh Parad with Mr. Om Suryawanshi i/b. Mr. Aruna Savla for
MCGM.

                                        CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 21st JUNE, 2021.

P.C.:-

Rule. Rule is made returnable forthwith. By consent the

matter is heard fnally.

2. The Petitioner herein has challenged the order dated

16/02/2021 whereby the learned Judge, City Civil Court, (Borivali

Division), Dindoshi, Goregaon, Mumbai, rejected the chamber summons

fled by the Petitioner for impleading him as party in a suit fled by

Respondent No.4.

Megha 31_wpst_10427_2021.doc

3. The Petitioner -Society is the owner of several structures in

plot of land bearing CTS Nos. C-18 to C-22. Respondent No.4 is in

possession of one of the structures bearing No.126B-4. The Petitioner

had alleged that Respondent No.4 had carried out unauthorised

construction in the open vacant space towards west and south abutting

the ground foor residential premises. The Petitioner therefore fled

Writ Petition No.2183 of 2019.

4. Pursuant to order dated 18/11/2019 in the said writ petition,

Respondent-Corporation initiated action against illegal construction.

Further by order dated 03/07/2020 the Division Bench of this court

directed implementation of order dated 13/02/2020, to demolish the

illegal structure and cart away the debris. Accordingly, the said

structure was demolished and compliance report was fled before the

Court.

5. It is the case of the Petitioner that subsequent to the said

demolition Respondent No.4 constructed another unauthorised

structure in an open space within plot bearing Survey Nos.C-20 and C-

21. Pursuant to the complaint lodged by the Petitioner, Respondent-

Corporation issued notice under Section 351 of the MMC Act, which is

Megha 31_wpst_10427_2021.doc

challenged by Respondent No.4 in L.C. Suit No.402 of 2021.

6. The Petitioner fled a chamber summons in the said suit for

impleading him as a party in the suit. Said chamber summons has been

dismissed mainly on the ground that the Petitioner is neither a

necessary nor a proper party for adjudication of the dispute. Being

aggrieved by the dismissal of the chamber summons, the Petitioner has

fled this petition under Article 227 of the Constitution of India.

7. Mr. Naidu, learned counsel for the Petitioner has relied upon

the decisions of learned Single Judge of this Court inJohnson John vs.

MCGM & Anr., Writ Petition No.1083 of 2018, Arun R. Singh & Anr. vs.

MCGM & Ors., Writ Petition No. 14207 of 2018 and Dunhill Dome

Co.op. Housing Society Ltd. Vs. Manuel Mergulhao and Ors., in Writ

Petition (Stamp) 93200 of 2020 to contend that the issue is no longer

res integra. He asserts that the Society is the owner of the property

wherein the Respondent has carried out unauthorised construction.

Being the owner, the Petitioner society is interested in protecting its

property.

8. Per contra, relying upon the decision of the Apex Court in

Mohd. Hussain Gulam Ali Sharif vs. MCGM and Ors. 2017(6) ALL MR

Megha 31_wpst_10427_2021.doc

420 (SC), Mr. Jayale, learned counsel for Respondent No.4 contends

that the Respondent No.4 has raised merely a question of legality of

notice under Section 351 of the MMC Act and that the presence of the

Petitioner is not required to decide the issue involved in the suit. He

submits that the Petitioner is neither a necessary nor a proper party

and as such learned Judge was justifed in dismissing the chamber

summons.

9. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

10. At the outset it may be mentioned that in Mohd. Hussain

(supra) a chamber summons for impleadment was fled in a suit where

challenge was raised to the notice under Section 351 of the MMC Act.

Impleadment was sought essentially on a ground that they had interest

in the suit house in as much as they claimed ownership rights and stated

that they had fled a suit for specifc performance which was pending

adjudication. The issue involved in the suit was whether the notice

under Section 351 was legally valid or not. Having regard to the facts of

the case, the Hon'ble Supreme Court held that the said parties were

neither necessary nor proper parties. Hence, it was held that presence

of Respondent Nos.2 and 3 in the said suit was not required to

Megha 31_wpst_10427_2021.doc

determine the issue involved in the suit. It was held that the Plaintif

being a dominus litus cannot be forced to add any person as party to his

suit unless it is held keeping in view the pleadings and the relief claimed

therein that a person sought to be added as party is a necessary party

and without his presence neither the suit can proceed nor the relief can

be granted.

11. This judgment has been considered and distinguished by the

learned Single Judges of this Court in Johnson John , Arun R. Singh and

M/s. Dunhill Dome Co.op. Hsg. Society (supra). In these cases the

parties, who had sought impleadment had direct interest and concern

with the property/premises in relation to which the notice under

Section 351 of the MMC Act was issued and the action was taken at the

instance of these parties. It was held that any order in the suit would

directly afect their rights and interest and hence they were necessary

and proper parties.

12. The facts of the present matter are not diferent. The land

where the alleged unauthorised construction is carried out is a part of

the Petitioner-society. The Corporation had earlier taken action as per

the direction of this Court in Writ Petition No.2183 of 2019, fled by the

Petitioner-Society. The impugned notice has also been issued in view of

Megha 31_wpst_10427_2021.doc

the complaint lodged by the Petitioner-Society. Any adverse order in

the suit will impact / afect the interest of the society. Hence, society

being the necessary and proper party ought to be impleaded as a party

Defendant.

13. Under the circumstances and in view of discussion supra, the

petition is allowed, impugned order is set aside. Chamber Summons

No.209 of 2021 in L.C. Suit No.402 of 2021 is made absolute in terms of

prayer clause (a) and (b). The trial court to permit the Petitioner to fle

reply to the Notice of Motion preferred by Respondent No.4 in L.C. Suit

No.402 of 2021 and to decide the same after hearing all the concerned

parties.

14. Rule is made absolute in above terms.

(SMT. ANUJA PRABHUDESSAI, J.)