1 WP-7080-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7080 OF 2010 Mr. Irshad Ahmed Haji Iqbal Khan ) residng at Flat No.101, 1st floor, ) Mahavir Building, 4/6, Versova Street, ) Bellasis Road, Kamathipura, ) Mumbai 400 008. ).. Petitioner (Orig. Plaintiff) Vs. 1. Municipal Corporation for Greater ) Mumbai, a body constituted under ) the M.M.C. Act, 1888, having its ) office at Mahapalika Marg, Fort, ) Mumbai 400 001. ) 2. Abdul Latif Abdul Razak, ) Muslim, Age 80 years, Occ.Business ) Through his power of Attorney holder) Shakil Abdul Laif Khan, Muslim, ) Age 40 years, Occ. Bsiness ) both are residing at 3, Haji Kasam ) Building, Bellasis Road, Versova ) Street, Nagpada, Mumbai 400 008. )..Respndents Mr. R.D.Soni, i/b. Pravin Ganesh Sawant,Advocate, for the petitioner Smt. K.K. Soran, Advocate for the respondent No.1. Ms. Indryani Kopikar, Advocate, for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 15th September, 2010. JUDGMENT 2 WP-7080-10.sxw 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. The petitioner is the owner of "Mahavir Building". He filed Long Cause Suit no.1100/2009 challenging the notice issued by the respondent No.1 - Municipal Corporation under Section 354A of the Bombay Municipal Corporation Act. In that suit, the respondent No.2 took out Chamber Summons No. 489/2010 for impleading as defendant no.2 on the ground that the plaintiff had made construction of a wall adjoining the wall of "Haji Kasam Building" in which the respondent No.2 is occupying two tenements, one commercial and another residential, as a tenant. According to him, because of the construction of the wall by the plaintiff, his rights are going to be affected. The application was opposed. However, the learned Judge, City Civil Court allowed the Chamber Summons and directed the respondent No.2 to be impleaded as defendant No.2. That order is challenged by the original plaintiff in this petition. 3. Admittedly, the disputed wall is constructed by the plaintiff on his own land, though that wall is said to be adjoining to the wall of Haji Kasam Building. According to the Municipal Corporation, the construction of the wall by the plaintiff is without permission and is in contravention of the Rules and 3 WP-7080-10.sxw therefore the notice under Sec. 354A was issued and that notice has been challenged by the plaintiff in the suit. Therefore, in that suit only question before the trial Court is whether the plaintiff had made the construction of that wall in contravention of the Rules and without permission of the Municipal Corporation. If he succeeds in proving that the construction has been made without contravention of the rules or with prior permission, the notice may be struck down and if he fails, his suit will have to be dismissed. The matter is purely between the plaintiff and the municipal Corporation. The respondent No.2 is admittedly neither the owner of Haji Kasam Building nor he is owner of the land on which that building is situated and admittedly, he is not the sole occupant of that complete building. He is occupying two tenements. Besides him, there are number of other tenants living in that building. If any rights of the owner of the building are being affected by construction of the wall by the plaintiff, the owner of the building could file a suit or appropriate proceeding against the plaintiff. 4. The learned Counsel for the respondent No.2 contends that due to construction of the disputed wall by the plaintiff, the windows of the tenement occupied by the respondent No.2 are being affected, as the respondent No.2 may be deprived of the light and air from this building. That may be a question about the easementary rights of the respondent No.2. The respondent No.2 may seek 4 WP-7080-10.sxw remedy against violation of his easementary rights by filing the appropriate suit. The considerations in the suit based on the easementary rights are totally different from the consideration in the suit challenging the notice under Sec. 354A issued by the Municipal Corporation. Therefore, the defendant No.2 is not at all a necessary party nor he has any right to intervene in said the suit. 5. It may be noted that earlier, son of the respondent No.2 had taken out Chambers Summons for impleading him as a defendant. That Chamber Summons was rejected. Against that, he had filed Writ Petition No.2761 of 2010 which came to be dismissed on 12.4.2010 observing that he was not a tenant or occupant of the building and if at all the tenant himself finds it necessary he could move the Chamber Summons and if such Chamber Summons is filed, it could be considered on its own merits. It appears that the learned trial court used the said observation for the purpose of allowing the present Chamber Summons without looking to the merits of the applications filed by the respondent No.2. Taking into consideration the facts and circumstances,I find that the trial Court committed serious error in allowing the Chamber Summons and impleading the respondent.2 as defendant. 6. For the aforesaid reasons, the Writ Petition is allowed. The impugned 5 WP-7080-10.sxw order is hereby set aside. Rule made absolute accordingly. (J.H.BHATIA,J.)