(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. (1) WRIT PETITION NO. 3085 OF 2011 WITH 1. Ghanshyamdas Laxmandas Kukreja, Age : 48 years, Occupation : Business. 2. Pahelaj Laxmandas Kukreja, Age : 46 years, Occupation : Business. 3. Parmanand Laxmandas Kukreja, Age : 42 years, Occupation : Business. 4. Rajkumar Laxmandas Kukreja, Age : 40 years, Occupation : Business. All R/o. CTS No. 4017/C (26), Station Road, Chalisgaon, District : Jalgaon. .. Petitioners. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. (2) 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (2) WRIT PETITION NO. 3086 OF 2011 WITH 1. Jairamdas Machhrumal Makhijani, Age : 54 years, Occupation : Business. 2. Rajesh Ghanshyamdas Makhijani, Age : 45 years, Occupation : Business. 3. Ashok Ghanshyamdas Makhijani, Age : 32 years, Occupation : Business. 4. Soniya w/o. Rajesh Makhijani, Age : 40 years, Occupation : Household & Business. All R/o. CTS No. 4017/C (33), Station Road, Chalisgaon, District : Jalgaon. .. Petitioners. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. (3) 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (3) WRIT PETITION NO. 3087 OF 2011 WITH 1. Smt. Dhamabai w/o. Tolaram Pawani, Age : 90 years, Occupation : Household. 2. Govind Tolaram Pawani, Age : 49 years, Occupation : Business. 3. Shyam Tolaram Pawani, Age : 42 years, Occupation : Business. All R/o. CTS No. 4017/C (25), Station Road, Chalisgaon, District : Jalgaon. 4. Smt. Indirabai Dayaldas Sadhwani, Age : 65 years, Occupation : Household, R/o. Bombay Society, Nasik. 5. Smt. Laxmibai w/o. Jairamdas Kukreja, Age : 55 years, Occupation : Household, R/o. Sindhi Colony, Jalgaon. .. Petitioners. (4) versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (4) WRIT PETITION NO. 3088 OF 2011 WITH 1. Smt. Devibai w/o. Adumal Pawani, Age : 74 years, Occupation : Household. 2. Ishwarlal Adumal Pawani, Age : 49 years, Occupation : Business. 3. Vijaykumar Adumal Pawani, Age : 46 years, Occupation : Business. 4. Dilipkumar Adumal Pawani, Age : 40 years, Occupation : Business. All R/o. CTS No. 4017/C (17), Station Road, Chalisgaon, Dist. Jalgaon. (5) 5. Sow. Mayabai Narayandas Gavada, Age : 59 years, Occupation : Household, R/o. Vaidya Nagar, Sindhi Colony, Yavatmal, District : Yavatmal. 6. Sow. Sushilabai Premchand Gavada, Age : 54 years, Occupation : Household, R/o. Vaidya Nagar, Sindhi Colony, Yavatmal, District : Yavatmal. (Petitioner Nos.5 & 6, through GPA Shri Vijaykumar Adumal Pawani, Petitioner No.3 herein above.) versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (5) WRIT PETITION NO. 3089 OF 2011 WITH 1. Smt. Bakulabai w/o. Sitaram Jain, Age : 75 years, Occupation : Household. (6) 2. Chandrakant Sitaram Jain, Age : 53 years, Occupation : Business. 3. Dilip Sitaram Jain, Age : 40 years, Occupation : Business. All R/o. CTS No. 4017/C (23), Station Road, Chalisgaon, District : Jalgaon. 4. Smt. Pushpabai Dhanyakumar Ukhakar, Age : 55 years, Occupation : Household, R/o. MSEB Sub-Station, Pachora, District : Jalgaon. 5. Smt. Laxmibai w/o. Sonba Burse, Age : 48 years, Occupation : Household, R/o. Kalamnuri, District : Parbhani. 6. Smt. Mangal Pradipkumar Ruikar, Age : 45 years, Occupation : Household, R/o. Buldhana. (Petitioner No.2 for self and on behalf of Petitioner Nos. 1, 3, 4, 5 & 6 as GPA) .. Petitioners. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. (7) 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (6) WRIT PETITION NO. 3090 OF 2011 WITH Kishor Narayan Rana, Age : 50 years, Occupation : Business, R/o. CTS No. 4017/C (19), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (8) (7) WRIT PETITION NO. 3091 OF 2011 WITH Rameshlal Hiranand Nagdeo, Age : 33 years, Occupation : Business, R/o. CTS No. 4017/C (18), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (8) WRIT PETITION NO. 3092 OF 2011 WITH Govind Somandas Sindhi, Age : 35 years, Occupation : Business, R/o. CTS No. 4017/C (20), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. (9) versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (9) WRIT PETITION NO. 3093 OF 2011 WITH Somandas Jiyaldas Sindhi, Age : 68 years, Occupation : Business, R/o. CTS No. 4017/C (21), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents (10) ....................... (10) WRIT PETITION NO. 3094 OF 2011 WITH 1. Ghanshamdas Laxmandas Kukreja, Age : 48 years, Occupation : Business. 2. Pahelaj Laxmandas Kukreja, Age : 46 years, Occupation : Business. 3. Paramanand Laxmandas Kukreja, Age : 42 years, Occupation : Business. 4. Rajkumar Laxmandas Kukreja, Age : 40 years, Occupation : Household & Business. All R/o. CTS No. 4017/C (15), Station Road, Chalisgaon, District : Jalgaon. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents (11) ....................... (11) WRIT PETITION NO. 3095 OF 2011 WITH 1. Arjandas Nathumal Wasvani, Age : 66 years, Occupation : Business. 2. Mohandas Nathumal Wasvani, Age : 63 years, Occupation : Business. 3. Budhaldas Nathumal Wasvani, Age : 58 years, Occupation : Business. 4. Narayan Nathumal Wasvani, Age : 47 years, Occupation : Household & Business. All R/o. CTS No. 4017/C (33), Station Road, Chalisgaon, District : Jalgaon. 5. Smt. Vidyabai Govindram Pawani, Age : 65 years, Occupation : Household, R/o. Sindhi Colony, Chalisgaon, District : Jalgaon. 6. Smt. Prabhavati Prakashlal Gidhwani, Age : 56 years, Occupation : Household. 7. Smt. Lilabai Ashokkumar Gidhwani, Age : 54 years, Occupation : Household. (12) Both R/o. Satnam Society, Lam Road, Devlali Camp, District : Nasik. 8. Smt. Ashabai Bansilal Karmani, Age : 52 years, Occupation : Household, R/o. Sindhi Colony, Jalna Road, Aurangabad. 9. Smt. Ranibai Narsingdas Sindhi (Katariya), Age : 50 years, Occupation : Household, R/o. Mahaveer Society, Station Road, Vyara, Dist. Surat, Gujrat State. 10. Smt. Putalibai d/o. Nathumal Waswani @ Sow. Putalibai w/o. Arjundas Kukreja, Age : 30 years, Occupation : Household. 11. Smt. Ijnabai Nathumal Waswani @ Sow. Ijnabai Anilkumar Kukreja, Age : 28 years, Occupation : Household. Petitioner Nos. 10 & 11 R/o. Sindhi Colony, Jalgaon. .. Petitioners. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents (13) ....................... (12) WRIT PETITION NO. 3096 OF 2011 WITH Kewalram Ghanshamdas Wadhwani, Age : 68 years, Occupation : Business, R/o. CTS No. 4017/C (12), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (13) WRIT PETITION NO. 3097 OF 2011 WITH Ramesh Ramchand Israni (Lund), Age : 30 years, Occupation : Business, R/o. CTS No. 4017/C (13), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. (14) versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (14) WRIT PETITION NO. 3098 OF 2011 WITH Jotumal Chuharmal Sindhi, Age : 70 years, Occupation : Business, R/o. CTS No. 4017/C (16), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents (15) ....................... (15) WRIT PETITION NO. 3099 OF 2011 WITH Ghanshamdas Machhrumal Makhijani, Age : 71 years, Occupation : Business, R/o. CTS No. 4017/C (11), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (16) WRIT PETITION NO. 3100 OF 2011 WITH Hansaraj Machhrumal Sindhi (Makhijani), Age : 71 years, Occupation : Business, R/o. CTS No. 4017/C (10), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. (16) versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents ....................... (17) WRIT PETITION NO. 3101 OF 2011 WITH Praveen Ghanshyam Mahajan, Age : 35 years, Occupation : Business, R/o. CTS No. 4017/C (22), Station Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. 2. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. .. Respondents (17) ....................... (18) WRIT PETITION NO. 3102 OF 2011 1. Nandlal Nenumal @ Bhikumal Sindhi (Lund), Age : 65 years, Occupation : Business. 2. Murlidhar Nenumal @ Bhikumal Sindhi (Lund), Age : 56 years, Occupation : Business. Both R/o. CTS No. 4017/C (24), Station Road, Chalisgaon, District : Jalgaon. .. Petitioners. versus 1. The Municipal Council, Chalisgaon, District : Jalgaon, Through its Chief Officer. 2. Tejas Construction and Infrastructure Pvt. Ltd., Sitamai Nagar, Chalisgaon, District : Jalgaon, Through its Director, Shri Yogesh Rameshchandra Agrawal. .. Respondents *************** (18) Mr. Ajay S. Deshpande, Advocate, for petitioners in all petitions. Mr. M.K. Goyanka, Advocate, for respondent no.1 / caveator in all petitions, except Writ Petition No. 3102/2011. Mr. R.N. Dhorde, Advocate, for respondent no.2 in all petitions, except Writ Petition No. 3102/2011. Mr. R.N. Dhorde, Advocate, for respondent no.1 in Writ Petition No. 3102/2011. Mr. M.K. Goyanka, Advocate, for respondent no.2 / caveator in Writ Petition No. 3102/2011. **************** CORAM : B.P. DHARMADHIKARI, J. DATE : 21ST APRIL 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. A.S. Deshpande, for the petitioners; Adv. Mr. M.K. Goyanka, for respondent no.1 / caveator, and Adv. Mr. R.N. Dhorde, for respondent no.2 / Municipal Council. 2. It appears that efforts to remove alleged encroachment by respective petitioners are going on since long. Litigation has come to this court in Writ Petitions in the years 1999, 2002 and (19) 2004. Respondent no.2 / Municipal Council claims to be owner of Survey No. 532/4016 and in 1998, has entered into an agreement for its development with respondent no.1. Clause 26 in that agreement casts obligation upon Municipal Council to remove shops and temporary sheds erected on CTS No. 4017 and to provide appropriate approach to complex to be constructed by respondent no.1. On perusal of map shown to this court by the petitioners, it appears that Survey No. 4017/C is the piece of land which separates public road from Survey No. 4016. In Survey No. 4017, it appears that there are more shops. The petitioners are either allottees from State Government or then have been allotted respective plots as claimed by them because of their status as evictees from Pakistan. 3. A notice dated 18-11-2010 under Section 179 of the Maharashtra (Municipal Councils), (Nagar Panchayats) And Industrial Townships Act, 1965 (For short, "1965 Act"), came to be served upon these petitioners by respondent 2 and they have challenged it on various grounds including right of Municipal Council to issue it. According to them, as State Government is owner and they are in possession as per allotment / lease executed in their favour by the State Government and are paying rent to the State Government, Municipal Council has no locus to issue such notices. In the suits, they have also sought temporary (20) injunction to restrain Municipal Council. 4. Present respondent no.1 / Developer filed an application under Order I Rule 10 of CPC for his impleadment in each Suit and after giving necessary opportunity to parties, trial court has allowed that application. The said order is questioned before this court by the petitioners. 5. Stating the principle of dominus litis, Adv. Mr. A.S. Deshpande, appearing for the petitioners, contends that petitioners have not claimed any relief against respondent no.1 and in any case, status of respondent no.1 is subordinate to that of respondent no.2. Hence, whatever order is passed against Municipal Council, it is binding upon respondent no.1 and it has no independent locus or status. He relies upon judgment of Hon. Apex Court reported at 2010 AIR SCW 4222, in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd. & others, to urge that in such circumstances, as laid down in paragraph 12.4 of the said judgment, a third person cannot be added as a party. He also contends that observation by trial court, that respondent no.1 is necessary party, is erroneous and misconceived. Express language of said provision is relied upon with unreported judgment of this court dated 12th January 1999 in Civil Revision (21) Application No. 800 of 1988, to urge that under said provision, only either of parties to the suit can seek impleadment and a third party is not entitled to move any such application. 6. In this situation, according to Adv. Mr. A.S. Deshpande, for the petitioners, the order, as passed, suffers from jurisdictional error and needs to be interfered with. 7. Respective Counsel appearing for respondent nos.1 and 2 have supported the impugned order/s. 8. The fact that status or locus of present respondent no.1 is dependent upon rights of respondent no.2 / Municipal Council, cannot be disputed at least at this stage. Respondent no.1 derives whatever right or interest it has, because of agreement executed in its favour by respondent no.2. However, that agreement is of the year 1998 and as already noted above, for over 12 years, the matter has not progressed further. Perusal of reported judgment of Hon. Apex Court in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd. & others (supra), and particularly paragraph 12.4 therein, on which learned Counsel for the petitioners has placed reliance, shows that said observations are in the context of a suit for specific performance and the persons likely to secure interest in the suit (22) property, after decision in pending suit, are held to be neither necessary nor proper parties. The observations show that if an application is made by plaintiff for impleading someone as a proper party, trial court has to find out limitation and bona fides of plaintiff and normally allow it, if it finds party to be added, a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds it to be a proper party, the court may direct his addition as a defendant. Hon. Apex Court has further held that if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or then court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to certain terms. 9. It is, therefore, apparent that in the case cited supra, Hon. Apex Court was considering claim of persons who were to secure interest in future. Here, the applicant before trial court, namely, present respondent no.1, has an interest existing since 1998 in development of Survey No. 4016 and also has an obligation cast upon Municipal Council to evict present petitioners from respective sheds / shops on Survey No. 4017/C. Not only this, he is neither claiming any independent relief (23) against the present petitioners nor is trying to widen the scope of adjudication. His effort is only to safeguard his interest i.e. as a developer in the matter. He may be interested in safeguarding the interest of respondent 2. Because of his intervention, the nature of suit does not undergo any change and the burden undertaken by the petitioners / plaintiffs is also not altered in any way. The status of respondent no.1 remains subordinate to the interest and subject to rights of respondent no.2. 10. The unreported judgment of this court in Civil Revision Application No. 800 of 1988 considers express language of Order I Rule 10, Sub-Rule 2 of CPC and notices that a third party can be added by court suo motu or then on application by "either party". Because of this, it has been held that third party itself cannot move such application. Hon. Apex Court in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd. & others (supra), has reproduced said provision in paragraph 8 of its judgment and while commenting upon it in paragraph 12.4, has also narrated the scope of exercise to be undertaken by the trial court if a non- party makes such an application. It is, therefore, obvious that unreported judgment in C.R.A. No. 800/1988, relied upon by the learned Counsel for the petitioners, can be of no assistance in the present situation. Even otherwise, when court can of its own (24) motion direct joinder of any third party, issue why such third party cannot be permitted to approach the court disclosing its interest / involvement in the suit, did not arise in unreported judgment. 11. The applications on which impugned orders are passed, are expressly styled as applications under Order I Rule 10, read with Section 151 of CPC. The trial court has found presence of respondent no.1 necessary for effectively adjudicating the controversy. The facts at hand do not show that said finding is either erroneous or perverse. The words "necessary party" used by trial court only show the necessity of a party for complete adjudication of the controversy. All relevant facets are looked into and then a finding based upon it has been reached by the learned trial Court. 12. I do not see any jurisdictional error or perversity and I am not inclined to interfere in the matter. 13. In the result, the petitions are dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE bgp/wp3085etc