1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9637 OF 2009 Mohd. Ismail Abdul Sattar Kazi Petitioner versus shaikh Shamsunisa Nazir Shah & anr. Respondents WITH WRIT PETITION NO.9638 OF 2009 Mohd. Ismail Abdul Sattar Kazi Petitioner versus Arthur Madhur Mohan Bolly & anr. Respondents WITH WRIT PETITION NO.9642 OF 2009 Mohd. Ismail Abdul Sattar Kazi Petitioner versus Meherunissa Munshi Shah & anr. Respondents WITH WRIT PETITION NO.9641 OF 2009 Mohd. Ismail Abdul Sattar Kazi Petitioner versus Surjit Kaur Saini and anr. Respondents WITH WRIT PETITION NO.9640 OF 2009 Mohd. Ismail Abdul Sattar Kazi Petitioner versus Prem Shankar Sharma and another Respondents 2 Swapnil A. Waradkar for petitioner. Sanjay Pandey i/by Divakar Dwivedi for respondent no.1. CORAM : A.S.OKA, J. DATE : 05th March 2010 PC :- 1. Heard learned counsel for the petitioner in these writ petitions. The first respondent in these petitions is the original plaintiff. The first respondent in each petition filed a suit against second respondent Municipal Corporation for perpetual injunction restraining the Corporation from demolishing the structures allegedly in their possession. The petitioner made separate applications under Rule 10(2) of Order I of Code of Civil Procedure, 1908 in each suit praying for a direction against first respondent-plaintiff to implead him as a party defendant. By the impugned orders, the applications made by the petitioner in the suits filed by the first respondent have been rejected. 2. The learned counsel for the petitioner submitted that the petitioner's room is situated on the rear side of the illegal constructions made by the first respondent. The contention of the petitioner is that in road widening the said structures of the first respondent in the writ petitions were demolished and permanent alternate accommodation was allotted to the first respondent. It is 3 contended that after demolition, the first respondent in each petition reconstructed their structures and carried out further encroachments in the open land between the old structures and the structure of the petitioners. As a result, the petitioner's right of easement of air and light has been infringed. It is, therefore, submitted that the petitioner is necessary and proper party. 3. The learned counsel for the petitioner pointed out the correspondence made by the petitioner and the communication issued by the second respondent to MMRDA.. He submitted that only on the basis of the complaint made by the petitioner, action of demolition was initiated. He has placed reliance on the decision in the case of Adam A. Sorathia and another Vs. Municipal Corporation of Greater Bombay and another (2002[4]-Bom.C.R-419). He submitted that in view of the said decision, the petitioner will be the necessary and proper party inasmuch as if the suit is not defended by the second respondent, the petitioner will suffer. 4. I have carefully considered the submissions. The petitioner is not claiming any right, title or interest in respect of the alleged unauthorized structure of the first respondent. The petitioner is not claiming any interest in the land below the structure. The contention of the petitioner is that his easmentary rights are affected by the 4 alleged illegal construction of the first respondent. In view of the decision of the Apex Court in case of Ramesh H. Kundanmal Vs. Municipal Corporation of Greater Bombay (1992[3]-Bom.C.R. (S.C.)-110, the petitioner does not have a direct interest in the subject matter of the suit. Reliance placed by the petitioner on the decision of this Court in case of Adam A. Sorathia and another (supra) will not help him as this Court has held that the owner/landlord of the land below the offending structure is a necessary and proper party in a suit filed for injunction restraining the local authority from demolishing the structure. In the present case, the petitioner has no direct or legal interest in the structure subject matter of the suits or the land below it. If easmentary rights of the petitioner are infringed, a remedy is available to the petitioner to approach the Court of law for enforcing his rights. 5. In the circumstances, the petitioner is neither a necessary nor a property party to the suits. The petitions are rejected. Remedy of the petitioner to enforce his rights is kept open. Hearing of the suits is expedited. (A.S.OKA, J.)