Case Note & Summary
The writ petition challenged an order of the City Civil Court, Greater Bombay, dated 10 October 2011, which allowed the impleadment of respondent No. 2 as a defendant in a suit filed by the petitioner. The suit had been instituted to challenge a notice dated 30 May 2011 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888, by the Assistant Commissioner of the Municipal Corporation, threatening demolition of an alleged unauthorized construction in room No. 31 on the third floor of building No. 123, Masjid Street, Mumbai. The petitioner had earlier sought ad-interim relief which was refused, but in an appeal from order some protection was granted. Respondent No. 2, a neighbour residing in adjoining building No. 81/83, Bapukhote Marg, filed a chamber summons for impleadment, asserting that the unauthorized construction directly affected the air and light of her premises, that the buildings were separated only by a narrow house gully, and that her complaints to the municipal authorities had triggered the action under Section 351. The trial court allowed the application, holding her to be a necessary party. The petitioner opposed the impleadment, contending that respondent No. 2 was neither a necessary nor a proper party, and that if she had any grievance regarding air and light she should file independent proceedings. The petitioner relied on Ramesh Hiranand Kundanmal v. Municipal Corporation of Greater Bombay and Shayam Fatechand Shende v. Alka Vinod Ganvir. Respondent No. 2, supported by the judgment in Chandrakant Dharma Bhonu v. Pandurang Ramchandra Dandekar, argued that as the person whose persistent complaints led to the issuance of the notice, and whose rights were directly affected, she was directly and substantially concerned with the litigation. The High Court, after examining the facts, found the case analogous to Chandrakant Bhonu, where a complainant who had persuaded the corporation to act was held to be a necessary party. It distinguished the petitioner’s cited authorities on facts. The court concluded that respondent No. 2 was directly and substantially concerned with the suit and that no infirmity existed in the impugned order. Accordingly, the writ petition was dismissed, and the impleadment order was upheld.
Headnote
A) Municipal Law - Impleadment in Demolition Notice Challenge - Necessary Party - Mumbai Municipal Corporation Act, 1888, Section 351 - In a suit challenging a municipal demolition notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, a neighbour who made the complaint leading to the notice, whose light and air are directly affected by the alleged unauthorized construction, and who is residing in an adjoining building, is held to be a necessary and proper party, being directly and substantially concerned with the litigation. Held, following Chandrakant Dharma Bhonu v. Pandurang Ramchandra Dandekar, that the impleadment order was justified, distinguishing Ramesh Hiranand Kundanmal on facts. (Paras 10-14)
Issue of Consideration
Whether a neighbour who complained to the Municipal Corporation leading to issuance of a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, and whose light and air are affected by the alleged unauthorized construction, is a necessary or proper party to a suit challenging the notice.
Final Decision
The High Court dismissed the writ petition, holding that respondent No. 2 was directly and substantially concerned with the suit and was therefore a necessary party. The impugned order of the City Civil Court was upheld, and no case was made out for interference under Article 227. The petition was dismissed with no order as to costs.
Law Points
- Person whose complaint led to issuance of notice under Section 351 and who is directly affected by unauthorized construction in terms of air and light is a necessary party to suit challenging the notice
- Impleadment justified when applicant is directly and substantially concerned with the proceedings
- Factual similarity to Chandrakant Dharma Bhonu v. Pandurang Ramchandra Dandekar
Case Details
2011 LawText (BOM) (12) 40
Writ Petition No. 9622 of 2011
Mr. Anil Singh with Mr. Dilip H Shukla for the Petitioner, Ms. Mahak Bookwala Shetty i/by Zohair & Co. for the Respondent No.2
Aijaz @ Azaz Mohammed Shaikh
Municipal Corporation of Greater Bombay (Brihanmumbai Mahanagarpalika) and Falaknoor wife of Arif Lakdawala
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order of the City Civil Court allowing the impleadment of respondent No. 2 as a defendant in a suit that challenged a demolition notice under Section 351 of the Mumbai Municipal Corporation Act, 1888.
Remedy Sought
The petitioner sought quashing of the order dated 10 October 2011 passed by the City Civil Court, Greater Bombay, in Chamber Summons No. 769 of 2011, thereby setting aside the impleadment of respondent No. 2.
Filing Reason
The City Civil Court allowed the application for impleadment without, according to the petitioner, respondent No. 2 being a necessary or proper party to the suit, and the petitioner challenged that order as erroneous.
Previous Decisions
The City Civil Court, by order dated 10 October 2011, allowed Chamber Summons No. 769 of 2011 and impleaded respondent No. 2 as a defendant. Earlier, in the same suit, the trial court refused ad-interim relief, against which the petitioner filed Appeal from Order No. 908 of 2011 where some protection was granted.
Issues
Whether a neighbour who complained to the Municipal Corporation leading to issuance of a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, and whose light and air are affected by the alleged unauthorized construction, is a necessary or proper party to a suit challenging the notice.
Submissions/Arguments
The petitioner, through counsel, argued that respondent No. 2 was neither a necessary nor a proper party as she was neither a resident nor an owner of the building in question; any grievance regarding air and light should be raised in an independent proceeding. Reliance was placed on Ramesh Hiranand Kundanmal v. Municipal Corporation of Greater Bombay and Shayam Fatechand Shende v. Alka Vinod Ganvir. It was also contended that respondent No. 2 herself had carried out unauthorized construction.
Respondent No. 2, through counsel, submitted that the notice under Section 351 was issued as a result of her complaints, that the buildings are adjoining with only a 5-6 feet gap, and that the unauthorized construction directly affected her air and light. She relied on Chandrakant Dharma Bhonu v. Pandurang Ramchandra Dandekar to assert she was a necessary party.
Ratio Decidendi
A person who made a complaint to the municipal corporation that resulted in the issuance of a demolition notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, and whose right to air and light is directly affected by the alleged unauthorized construction in an adjoining building, is a necessary party to the suit challenging that notice, as she is directly and substantially concerned with the proceedings.
Judgment Excerpts
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 (Para 5)
It is required to be noted that the Respondent No.2 had addressed two letters to the Assistant Commissioner of the Corporation… the said unauthorized construction was directly affecting the rooms of the residents of the adjoining building… disturbing their privacy and safety, besides causing nuisance. (Para 10)
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. 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. (Para 13)
I do not find any infirmity in the impugned order dated 10/10/2011 passed by the learned Judge of the City Civil Court, Greater Bombay. (Para 14)
Procedural History
The petitioner filed Short Cause Suit No. 1444 of 2011 in the City Civil Court at Bombay challenging a notice dated 30 May 2011 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888, regarding alleged unauthorized construction in building No. 123, Masjid Street. The trial court refused ad-interim relief, against which the petitioner filed Appeal from Order No. 908 of 2011, wherein some protection was granted. Subsequently, respondent No. 2 filed Chamber Summons No. 769 of 2011 seeking impleadment as a defendant, alleging that the construction affected her air and light and that her complaints led to the corporation's action. By order dated 10 October 2011, the City Civil Court allowed the chamber summons and impleaded respondent No. 2. The petitioner challenged this order by filing Writ Petition No. 9622 of 2011 in the Bombay High Court. The High Court heard the petition and by judgment dated 22 December 2011 dismissed it, affirming the impleadment.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 351
- Maharashtra Regional and Town Planning Act, 1966:
- Right to Information Act, 2005:
