Rajiv Savara & Anr vs Municipal Corporation Of Delhi & ...
2017 Latest Caselaw 2968 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 03.07.2017

+      CS(OS) 41/2011

RAJIV SAVARA & ANR                                         ..... Plaintiffs
                               Versus
MUNICIPAL CORPORATION OF DELHI & ORS. ..... Defendants
Advocates who appeared in this case:
For the Plaintiffs : Mr. Raman Duggal with Mr. S K Gandhi and Ms.
                     Manjula Gandhi.
For the Defendants : Ms. Mini Pushkarna, Standing Counsel for
                     SDMC with Mr. Ashutosh, Ms. Vasundhara
                     Nayyar and Ms. Namrata.
                     Mr. Anil Sapra, Senior Advocate along with
                     Mr. Rajeev Kumar Yadav for appellant in OA
                     No. 207/2015.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
                                     JUDGMENT

VIBHU BAKHRU, J OA No. 207/2015

1. Roseview Estate Private Limited, a company incorporated under the Companies Act, 1956 has filed the present appeal under Chapter-II, Rule 4 of the Delhi High Court (Original Side) Rules, 1967 impugning an order dated 03.03.2015 passed by the learned Joint Registrar, whereby, the appellant‟s application (IA No. 17464/2012) filed under Order I Rule 10 of the Code of Civil Procedure, 1908, to be impleaded as a party in the above captioned suit, was dismissed.

2. The plaintiffs and defendant nos. 2 to 11 are owners/residents of a colony named Padmini Enclave, New Delhi. It is claimed that the said colony consists of a plotted development of twelve residential plots of

land. The plaintiffs are owners/residents of house nos. 3 and 11 of Padmini Enclave and defendant nos. 2 to 11 (who are pro forma defendants) are the respective owners of the remaining ten plots. The controversy involved in the above captioned suit relates to the title in respect of three roads, which the plaintiffs claim to be private roads of Padmini Enclave and further assert that each of the plot owners have a 1/12th undivided title in respect of the said roads.

3. In their plaint, the plaintiffs claim that Padmini Enclave has been developed on a plot of land measuring around 20 bighas (hereafter „the original parcel of land‟) which originally formed a part of the Khasra nos. 370 and 371 in village Kharera, Tehsil Mehrauli, Delhi. The plaintiffs further claim that in the year 1958, various persons, who were at the material time owners of the original parcel of land, applied for sanction of the layout plan in respect of the original parcel of land, which was sanctioned by defendant no.1, Municipal Corporation of Delhi (MCD) by resolution no. 30 dated 30.07.1958. It is claimed that in conformity with the said approved layout plan, the original parcel of land was split as under:-

"a) A 40 ft. wide road running alongside Aurobindo Marg, erstwhile Mehrauli Road [hereinafter referred to as Road No.1]

b) A plotted area consisting of 12 separate plots on the east of this 40 ft. wide road

c) A second 40 ft. wide road running along the eastern boundary of the plotted area [hereinafter referred to as Road No.2]

d) A 20 ft. wide road running along the southern boundary of the plotted area [hereinafter referred to as Road No.3]

e) An open space on the east of the second 40 ft wide road, eastern boundary of which open space is co-terminous with the eastern boundary of the said land, the western boundary of which is co-terminus with the eastern boundry of Road No.2, the northern boundary of which adjoins land belonging to Mrs. P.N. Bhandari (now Kaushalya Park), and the southern boundary of which adjoins land belonging to DLF (now Hauz Khas Enclave)."

4. It is claimed that the resolution dated 30.07.1958 was approved by the standing committee on 28.01.1963 and in terms of the said approval, the owners were required to maintain the roads at their own costs, till such time that management of the roads was taken over by defendant no.1 (MCD). The plaintiffs claim that thereafter, the owners of the original parcel of land executed a deed of partition, which was registered on 02.11.1964. In terms of the said deed of partition, whilst twelve separate plots were carved out and were held by the respective owners, the open space and the three roads in question remained the joint property of the owners.

5. It is stated that the original parcel of land (now developed as Padmini Enclave) is in the vicinity of the "Idgah" situated in Hauz Khas, which the plaintiffs claim, was built around 1404-1405 AD and is a protected monument. The plaintiffs further claim that certain construction was noticed in the immediate vicinity (within 100 metres) of the Idgah and this led the plaintiffs to file a writ petition, being W.P.(C) 2023/2010 captioned as Rajiv Savara and Another v. Archaeological Survey of India and Others, for protection of the monument and restraining any illegal construction in its vicinity. The plaintiffs claim that during the course of those proceedings, submissions were made that road nos. 1, 2 and 3, which the plaintiffs claim to be the property of the owners of Padmini Enclave,

were public roads. It is also claimed that on further enquiries, the plaintiffs learnt that defendant no.1 intended to link road no. 3 with a municipal road on the northern side of the colony, Padmini Enclave. They further claim that such link-up would make the internal private roads of Padmini Enclave, a thoroughfare.

6. Aggrieved by the same, the plaintiffs have filed the present suit, inter alia, praying as under:-

"a. Pass and pronounce a Decree of Declaration in terms of the Resolution No. 13 dated 30.07.1958, declaring and holding that the Plaintiffs and the Defendant Nos. 2 to 11 have an undivided 1/12th share each in the land comprising Road Nos. 1, 2 and 3 as well as in the vacant land to the East of road No.2 and further that Road Nos. 1, 2 and 3 of Padmini Enclave, New Delhi and which is more particularly shown in the lay out plan attached with the suit, are "private roads", and consequently, are not "public roads" or municipal roads;

b. Pass and pronounce a decree of Permanent Injunction against Defendant No.1 from claiming/treating deeming Road No.1 and/or Road No.2 and/or Road No.3 as public roads; and taking any steps to link Road No.3 (as depicted in the site plan) to any municipal or public road on the northern side."

7. The appellant claims to be vitally interested in the subject matter of the present suit. It claims to be the owner of a plot of land measuring 11 bighas 10 biswas comprised in Khasra nos. 371, 372, 373, 374, 375/694 at Village Kharera, Tehsil Mehrauli, New Delhi, which, it intends to develop into a group housing project. The appellant further claims that road no. 3 - a 40 feet wide road, which the plaintiffs claim to be a private road jointly

owned by the owners of Padmini Enclave - is a public road and runs through the property owned by the appellant.

8. The appellant claims that it had approached the Archeological Survey of India (ASI) for permission to construct a group housing project on its property, which was granted on 03.07.2006. Appellant further states that on becoming aware of the present suit, the appellant filed a writ petition being W.P.(C) 4797/2012 titled as Roseview Estates Pvt. Ltd. v. South Delhi Municipal Corporation & Ors, inter alia, for a declaration that road nos. 1, 2 and 3, Padmini Enclave were not private roads as claimed by the plaintiffs herein.

9. The appellant further states that defendant no.1 has also approved building plans for the group housing project proposed to be developed by the appellant on its property on certain conditions. One of the conditions imposed by the said defendant is that the appellant would develop the road cul-de-sac and other services including street lighting and storm water drainage and shall handover the same to the respective departments prior to sanction of the building plans.

10. The writ petition filed by the appellant (W.P.(C) 4797/2012) was disposed of by this Court by an order dated 17.08.2012, directing the plaintiffs and the appellant to make a representation before defendant no.1, with a further direction to the said defendant to pass a speaking order with regard to the dispute whether the roads in question are public roads or private roads. The appellant states that in compliance with the aforesaid directions, the Chief Town Planner, Town and Planning Department passed a speaking order on 17.09.2014 holding that the roads in question are public roads.

11. Mr Anil Sapra, learned Senior Counsel appearing for the appellant submitted that the present suit vitally affects the interests of the appellant as access through road no. 3 is essential for development of the proposed group housing project. He pointed out that in terms of the conditions imposed by defendant no. 1, it would be necessary to lay sewage system and build cul-de-sac through the 40 feet wide road. Thus, any order passed in the present suit holding that the roads in question are private roads would adversely affect the interests of the appellant.

12. He further referred to the decision of the Supreme Court in Vidur Impex and Traders Pvt. Ltd. & Ors. v. Tosh Apartments Pvt. Ltd. & Ors.: (2012) 8 SCC 384 in support of his contention that the appellant is a proper party whose presence would enable the Court to effectively adjudicate on the matters and, thus, it should be impleaded as a party even if no relief is sought against it. He further contended that the reliance placed by the Joint Registrar on the decision of the Supreme Court in Kasturi v. Iyyamperumal & Ors: (2005) 6 SCC 733 was misplaced as the said decision was rendered in the context of a suit for specific performance of a contract. He submitted that necessary parties in a suit for specific performance of a contract would necessarily be the parties to the contract or persons claiming through them. However, in the present case, the plaintiffs were claiming title in respect of the three roads in question, which was disputed by the appellant. And, the appellant having a vital interest in the outcome of the suit would be a proper party and was required to be impleaded.

13. Mr Raman Duggal, learned counsel appearing for the plaintiffs countered the submissions made by Mr Sapra. He submitted that no relief

was claimed against the appellant. The subject matter of disputes in the suit concerned the title of defendant no. 1 in respect of the roads in question and there was no requirement to implead any third party to the disputes.

14. Undeniably, the appellant would be adversely affected if a decree as sought by the plaintiffs is passed in their favour and against defendant no.

1. It is also indisputable that the Court has a wide discretion in impleading necessary and proper parties for complete adjudication of the issues involved. However, the question to be addressed is whether the appellant is a necessary or a proper party to the suit.

15. A necessary party is one without whom an effective decree cannot be passed. While a proper party is one whose presence is appropriate for a complete adjudication of the issues involved. (See: Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Ors: (2010) 7 SCC 417).

16. In Vidur Impex and Traders Pvt. Ltd. & Ors. (supra), the Supreme Court considered various earlier decisions and set out the broad principles to be considered while examining the question of impleadment. The relevant extract of the said decision is set out below:-

"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1 The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2 A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3 A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4 If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5 In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6 However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."

17. In Kasturi v. Iyyamperumal & Ors. (supra), the Supreme Court laid down two tests to determine the question as to who is a necessary party. It held that (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings and (ii) no effective decree can be passed in the absence of such party. The appellant‟s contention that the said decision is not applicable as it was rendered in the context of a suit for specific performance, is unmerited. The tests as laid down by the Supreme Court for determining who is a necessary party has universal application and is not confined only to cases relating to specific performance of contracts.

18. In the present case, it is not disputed that the appellant is not a necessary party as an effective decree can be passed in the suit even in absence of the appellant. However, the question to be addressed is whether the appellant is a proper party, considering that its interests would be adversely affected if a decree is passed in favour of the plaintiffs.

19. The above controversy must be answered by addressing the question whether the presence of the appellant would enable the Court to completely and effectively adjudicate on the matters in issue. The controversy in the present suit is with respect to the title of land (the roads in question). The plaintiffs assert that title over the land vests with plaintiffs and other owners of Padmini Enclave and the roads developed on the land are private roads. The question involved in the suit is whether the land (roads) vests with the municipal authorities or with the plaintiffs. Indisputably, the appellant has no title or interest in the land except as a member of the public entitled to use public roads (if it is held that the road in question is a public road which vests with the defendant no.1 corporation).

20. It is at once clear that the appellant has no role to play in the controversy regarding the title of the land in question. The contest in respect of title is between the plaintiffs and defendant nos. 2 to 11 on one part and defendant no.1 on the other. The issue whether the roads in question are public roads or private roads would necessarily have to be established by the plaintiffs and/or defendant no.1.

21. The appellant also asserts that the road in question (road no.3) is a public road. Thus, clearly its interests in the said property is no higher than the interests of the general public in public lands. Although, it is correct that a person who is vitally affected may be impleaded as a party in a suit

even though no relief is sought against him, however, it is necessary that his interests must be direct and enforceable. It must be shown that the right of the person sought to be impleaded as a party is such as would be adversely affected if he is not added as a party and such person ought to have been arrayed as a party in the first place.

22. In Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr.: AIR 2005 SC 2209, the Supreme Court had observed as under:-

"9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases:

(1) When he ought to have been joined as plaintiff or defendant, and is not joined so, or

(2) When, without his presence, the questions in the suit cannot be completely decided.

10. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right."

23. In the present case, the Court is not persuaded to accept that the controversy in the present suit cannot be effectively or completely adjudicated in the absence of the appellant. As stated earlier, the appellant has no independent title/right in the land/roads in question, which is the subject matter of adjudication in this suit. Thus, this Court finds no reason to interfere with the impugned order.

24. The appeal is, accordingly, dismissed. The parties are left to bear their own costs.

CS(OS) 41/2011

25. List on 02.08.2017.

VIBHU BAKHRU, J JULY 03, 2017 pkv