1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7579 OF 2009 M/s. M Chunilal & Company ........ Petitioner versus The Municipal Corporation of Greater Bombay & Ors. ........Respondent. Mr. Dineshkumar Jain i/b. Paras Kuhad & Asso. adv. for the Petitioner Mr. Dinesh Pednekar i/b. Advani & Co. for the Respondent no.2. None for the respondent no.1- BMC. CORAM: A. P DESHPANDE, J. DATED : 10th November, 2009. P. C.: 1. This petition is directed against an order dated 7 th August 2009 passed by City Civil Court in L.C. Suit No.702/09. By the impugned order, application filed by one Sudheer Bahl who is respondent no.2 in the present petition, came to be allowed permitting his impleadment as party defendant in the suit filed by the plaintiff. Aggrieved thereby the plaintiff has instituted this petition. Few facts that are necessary to adjudicate the issue involved are narrated in brief herein below. 2. The respondent no.2/plaintiff before the City Civil Court claims that he is the sole proprietor of Khyber Hotel Corporation 2 and as such he is owner and landlord of the building known as Temple Bar Building. The plaintiff’s suit questions the legality and validity of the notice issued by the Mumbai Municipal Corporation- respondent no.1 under section 351 of the BMC Act. According to the Corporation, the plaintiff has constructed a part of mezzanine floor in the suit premises without seeking approval of the BMC. It is also the case of the Corporation that the plaintiff has constructed a loft in the tenanted premises and has also carried out some unauthorized structural alteration therein. After hearing the plaintiff, Assistant Commissioner, `A’ ward, passed an order directing removal of the extended construction of Mezzanine floor admeasuring 15.39 sq. m. so also removal of some unauthorized construction. The plaintiff, as stated herein above, has questioned the notice and impugned order passed consequent thereupon. It is not disputed that Kyber Hotel Corporation is the plaintiff’s landlord. However what is disputed is the applicant’s interest therein meaning thereby the status of the applicant either as proprietor or partner in the firm. It is the case of the applicant that initially Kyber Hotel Corporation was a partnership firm however at a later point of time the applicant became the proprietor thereof. This position is disputed. 3. According to the plaintiff with the permission of the partner of Kyber Hotel Corporation, the mezzanine floor was constructed. However on instigation from the present respondent no. 2/defendant no.2, a notice came to be served on the plaintiff by the Corporation with a view to remove the alleged un-authorized 3 construction of mezzanine floor. It is thus the case of the Plaintiff himself that the notice was issued by the Corporation on a complaint made by the defendant no.2/applicant. The plaintiff has placed reliance on a communication dated 14-1-1982 to contend that it was with the prior permission of the landlord that the mezzanine floor was constructed. Perusal of paragraph 2 of the said communication reveals that the plaintiff was authorized to construct mezzanine floor subject to the approval of the BMC. The reply given by the plaintiff to the notice under section 351 of BMC Act addressed to the Assistant Municipal Commissioner states that the notice has been issued under instigation and at the instance of the landlord. The relevant paragraph of he reply dated 21 st June 2008 sent by the plaintiff to the Corporation reads thus: “At the outset, before dealing with your notice, we deny having carried out any works in our premises as alleged in your notice under reply and have to place on record that the same apparently has been issued under instigation and at the instance of the landlords of the building, one Shri S. Bahal, proprietor of M/s. Khyber Hotel.” 5. It is thus apparent that the applicant before the City Civil Court who sought impleadment as party defendant is referred to as proprietor of M/s. Khyber Hotel by the plaintiff himself. The trial court has noted the fact that the applicant is the owner and land lord of the property in question, and at whose instigation notice 4 under section 351 has been issued and thus concluded that the applicant is a person having interest in the property and thus would be a proper party in the suit. The trial court was of the view that impleading the applicant would enable the court to effectively and completely adjudicate and settle all questions involved in the suit and thus permitted impleadment of the applicant. 6. Perused the order impugned. According to the learned counsel for the petitioner, the impleadment of the applicant as defendant no.2 ought not to have been permitted as the applicant is not a necessary party and the legality or validity of the notice could have been decided even in the absence of the applicant before the court. True it is, that the applicant is not a necessary party. However, the applicant could be permitted as he is a proper party for the reason that the property in question is owned by the applicant, a portion of which have been asked to be removed/demolished. Besides the same the action has been restored to by the Corporation at the instance of the applicant himself. The learned counsel for the petitioner has placed reliance of a Supreme Court judgment reported in AIR 1992 SCW. Page 846 in case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Mumbai and others. 7. Per contra the learned counsel for the plaintiff submitted that the said judgment of the Supreme Court is distinguishable in as much as in the said case no notice was issued to the landlord by the Corporation and there was no case of collusion pleaded by the 5 applicant between the the tenant and the Corporation. In the present case, perusal of the application moved under Order 1 Rule 10 clearly reveals that the applicant has pleaded that the unauthorized construction has been tolarated by the Corporation as the Corporation officers were hand in glove and in collusion with the tenant. The learned counsel for the applicant/defendant no.2 has relied upon a judgment of the Supreme Court reported in AIR 1997 S.C. 64 in case of M/s. Aliji Monoji & Co. Vs. Lalji Mavji and others, wherein the Supreme Court has held that the landlord is a proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of the building on the ground of unauthorized construction. The premise on which the Apex Court took the said view is that the landlord has direct and substantial interest in the building, the part of which is the subject matter of demolition. Whether the objectionable construction is made with or without consent of the landlord the demolition would materially affect the right, title and interest of the landlord in the property. 8. The ratio laid down by the Apex Court in the judgment reported in AIR 1997 S.C. 64, is more applicable to the facts of the present case. The trial court has taken a very possible view of the matter in permitting impleadment of the applicant as a party defendant. The impugned order does not call for any interference. I am also of the view that permitting impleadment of the applicant as party defendant does not cause any prejudice to the plaintiff and hence no interference in writ jurisdiction is called for. In the 6 result, the petition fails and is dismissed. Rule is discharged. 9. At this stage, the learned counsel for the petitioner seeks stay of this order. I do not feel that this is a fit case for staying the order. Hence the prayer is rejected. (A. P. Deshpande, J.)