1 W.P. 2181/2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2181 OF 2003 Beryl Apartments Co-operative Housing .... Petitioner Society Ltd., Mumbai. Vs. The Mumbai Municipal Corporation of .... Respondent of Greater Mumbai. (Ori. defendant) Mrs. Mabel D’Penha, Mumbai .... Respondents (Ori. Applicant) Mr. R.G. Singh, Advocate for petitioner. Respondent no.1 and Advocate absent. Respondent no.2 present in person. Coram : Smt. R.P.SondurBaldota, J. Date : 20th September, 2010 P.C. 1. This petition filed under Article 227 of Constitution of India seeks quashing of the order dated 28th February 2003 passed by the Bombay City Civil Court on the Chamber Summons taken out by respondent no.2 for impleading herself as a party to the suit filed by the petitioner against respondent no.1, the Mumbai Municipal Corporation. The suit is filed to challenge legality of the notice dated 10th May 2001 issued by respondent 2 W.P. 2181/2003 no.1 under Section 53 of the Maharashtra Regional & Town Planning Act, 1966. By the notice, the petitioner has been directed to demolish the brick masonry compound wall “ constructed on the gate which is provided to C.T.S. No.B/312 & B313 from 20’ 0” right of way as shown in approved building plan sanctioned under No.CE/72/BS II/Misc AH dated ¼ 18/1/2001”. This notice has been issued by Mumbai Municipal Corporation on the complaint of respondent no.2, who alleges that because of construction of the wall, her right of easement through plot bearing C.T.S. B/314 is adversely affected. Respondent no. 2 is the owner and occupier of the property at C.T.S. B/312. 2. The suit was filed on 6th January 2001. By the order dated 11th June 2001, an ad-interim injunction was granted restraining respondent no.1 from taking any action pursuant to the notice in respect of the wall. Within a short time thereafter i.e. on 7th July 2001, respondent no.2 took out the Chamber Summons for impleading herself as a party- defendant to the suit. The Chamber Summons was allowed by the impugned order dated 28th February 2003. The petitioner then filed the present petition on 11th March 2003. He applied 3 W.P. 2181/2003 for the interim relief of not only the stay of the order impugned in the petition but also of the entire suit. By the order dated 7th April 2003, this Court has granted both the interim reliefs to the petitioner. With the stay of the further proceedings in the suit, the hearing of the Notice of Motion in which the ad-interim injunction was granted has been stayed. Thus, by filing this petition in the year 2003, the petitioner has succeeded in getting the ad-interim injunction obtained in the suit in the year 2001 extended for more than 9 years. 3. It has been contended on behalf of the petitioner that the impugned order is illegal and is required to be set aside, because respondent no.2 cannot be said to be either a necessary party or a proper party to the suit between the petitioner and the respondent no.1. Mr.Singh, the learned counsel for the petitioner submits that the respondent no.2 at the highest can be a witness of respondent no.1 as and when the suit proceeds for trial. He relies upon the decision of this Court in the case of Shayam s/o Fatechand Shende & Anr. vs. Alka w/o Vinod Ganvir & Anr., reported in 1998(1) ALL M.R. 73 to submit that in a suit of similar nature, it has been held by our High Court that a third party claiming to have a right 4 W.P. 2181/2003 of way cannot be said to be a necessary party. Perusal of the decision relied upon by Mr.Singh shows that in the facts of that case, this Court held that the applicants right cannot be “ said to be affected merely because the non applicant no.1 has carried out some unauthorised constructions in the premises”. In the instant case, the right claimed by respondent no.1 is directly affected by the wall constructed by the petitioner. The notice impugned in the suit for removal of the unauthorised construction has been issued by respondent no.1 on the complaint of respondent no.2. Respondent no.2 herein is directly affected by the dispute raised in the suit. She is a proper party, whose presence is necessary for complete and final decision in the matter. In the circumstances, there is no need to interfere with the impugned order. Hence, the petition is dismissed. 4. Mr. Singh applies for continuation of the interim order in the petition for a period of four weeks. The application is rejected. (Smt. R.P.SondurBaldota, J.) 5 W.P. 2181/2003