ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6856 OF 2008 PETITION NO. 6856 OF 2008 PETITION NO. 6856 OF 2008 M/s.Kailash Parbat Hindu Hotel & Anr. ...Petitioners. Vs. The Municipal Corporation of Greater Mumbai & Ors. ...Respondents. Mr.V.P.Sawant with Mr.Y.M.Chaudhari and Mr.Kunal Cheema i/by Smt. Veera Shinde for the Petitioners. Mr.Shiraz Rustomjee along with Mr.Shailesh Mendon. Ms.Prembhavi Thakkar and Mr.Rohan Kelkar for Respondent No.3. Mr.A.K.Nandanwar for Respondent No.1, B.M.C.. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 17th October, 2008. : 17th October, 2008. : 17th October, 2008. P.C. P.C. P.C. . The Petitioners/ Plaintiffs have challenged the impugned order dated 01/10/2008 whereby the Chamber Summons (Exhibit 5) filed by the First Pasta Lane residents Association and one resident of the said locality have been allowed to implead as a party Defendant. 2. The Petitioners have filed the Suit No.1905 of 2008 along with an injunction Application and thereby challenge is raised to the order dated 5th September, ( 2 ) 2008 passed by the Municipal Corporation of Greater Mumbai, whereby directed the Petitioners-Plaintiffs to demolish/ vacate the illegal construction/ land and in any manner interfering with their possession and or obstructing the same, i.e. the suit premises at C.S.No. 358 and 359, First Pasta Lane, Colaba without following due process of law. The basic relevant averments in the plaint are at paragraph 4, which are as under:- 3. "The Petitioners state that few disgruntled members and residents of First Pasta Lane for their personal gain started interrupting the peaceful business of the Petitioners. These few members with ulterior motives against the firm of the Petitioner No.1. Some of the residents are indulged in intimidation of customers who visited the Restaurant of Petitioner No.1. The Partners of Petitioner No.1 had to file the Complaints to the local Police Authorities against the illegal activities of some of the residents. When some of the residents failed to obstruct the business of the Petitioner No.1, with the ulterior motive approached this Hon’ble Court by way of filing Writ Petition being Writ Petition No.53 of 2007. This Hon’ble Court by its order dated 28th ( 3 ) January, 2008 disposed of the said Petition with directions. Pursuant to the said directions issued by the Hon’ble High Court, the Assistant Commissioner of Mumbai Municipal Corporation heard the parties and passed an order on 19th July, 2008. The order passed by the Asstt. Commissioner is challenged by the Petitioners in L.C.Suit No. 1905 of 2008." 4. As noted in a Writ Petition No.53 of 2007 filed by Respondent Nos.3 and others by order dated 28th January, 2008 while disposing of the Writ Petition observed as under:- "P.C P.C P.C . 1. ... 2. In view of the above, it is agreed between the parties that this competent authority of the Corporation shall hear respondent No.9 and the petitioner and pass an appropriate order expeditiously and dispose of the application for renewal of licence as well as the application for revocation. these ( 4 ) proceedings shall continue and the order as agreed would be passed by the authorities despite the order dated 4th November, 2006 as it is specifically agreed between the parties. 3. The Corporation has stated that the property in question is reserved and the parties would be _____ the effect of such reservation by the competent authority. 4. Writ Petition is disposed of in the above terms. The respondent No.9 or the petitioner as the case may be would be at liberty to change the said order in accordance with law. No order as to costs. The agreed terms and conditions are without prejudice to the rights and contentions of the parties. 5. The Respondent Corporation heard all the parties including the resident and member of the said association passed an order. The operative portion is as under:- ( 5 ) "ORDER "ORDER "ORDER 1) Asst. Commissioner ’A’ Ward shall issue the intimation to vacate the premises immediately as per the Undertaking given by the licensees on C.S.No.337,358 & 359 of Colaba Division. Asst. Commissioner (Estates)/A.O.(Estates) shall note and terminate the licensee agreement. 2) M.O.H. ’A’ Ward shall revoke the licence issued under section 394 of the M.M.C. Act on C.S.No.358 & 359 of Colaba Division." 6. As in the same suit the Bombay City Civil Court refused an ad-interim reliefs to restrain the Respondent Corporation from interfering with the Petitioners’ possession of the Suit premises, they preferred an Appeal from Order No.868 of 2008. By order dated 8th September, 2008 the said Appeal from Order was dismissed in limine. In the said Appeal against order, the First Pasta Lane Residents Association, the intervenor and after hearing all the parties, the Court dismissed the Appeal against order. ( 6 ) The relevant observations with regard to the issue in question are as under:- "3. The First Pasta Lane Residents Association, the intervenor herein had filed Writ Petition No.53 of 2007, agitating for its right of having a recreation ground in the locality. The parties to the writ petition including the appellants (who were respondent no.9) agreed that the competent authority of the Mumbai Municipal Corporation shall hear the appellants and the Association and pass an appropriate order on the application for renewal as well as revocation of the license given to the appellants. The Writ Petition came to be disposed off by the order dated 28th January, 2008 in terms of the agreement arrived at. Acordingly, the competent authority of the Corporation i.e. the Assistant Municipal Commissioner gave a hearing to both the parties on 9th April, 2008 and 21st May, 2008. The parties were also allowed to produce documents in ( 7 ) support of their respective claims. The competent authority passed its order dated 19th July, 2008 observing that the present structures standing on the three plots of land, have been constructed without following the D.C.Regulations, thereby violating the building norms, open space etc. It has further observed that the appellant has not observed the safety measures essential for industrial kind of kitchen. The unauthorised work carried out by the appellant is not tolerable in nature. With these and several other observations, the Assistant Municipal Commissioner passed an order directing that an intimation be issued to the occupants to vacate the three properties immediately as per the Undertaking given by the appellants and terminate the license agreement." 7. In this background and in the peculiar facts and circumstances of the present case, there remained no due with the Applicants to the Chamber Summons i.e. Respondents herein have been taking part in all the ( 8 ) proceedings filed and or related to suit property. The relevant extract of the Writ Petition, filed against Order, fact even the averments made in the Plaint which are reproduced above, shows that through out these proceedings the Court have taken cognizance of the objections/ submissions raised by the resident of the said locality i.e. First Pasta Lane, as noted the Writ Petition was filed by them which was disposed of, whereby they have been permitted to participate the proceedings and accordingly they participated before the Commissioner and in fact produced various documents in support of their objections. The Plaintiffs-Petitioners also noted and referred in the plaint itself, their respective objections/ allegations. In fact it is agreed between the parties that the Respondent to hear the Petitioners along with others and pass appropriate orders expeditiously. In view of this admitted position on record, I have to consider whether is there any illegality or pervercity while allowing this Chamber Summons. 8. In view of the above and in view of peculiar facts and circumstances of the case, without observing anything much on the citations as referred, the Petition is dismissed. ( 9 ) 9. The learned counsel appearing for the Petitioner seeks stay to the order passed today. As this application is of joining of party, I see there is no reason to stay the order. Accordingly, the request to stay the order, is rejected. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)