1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5104 OF 2009 Shri Himmat Khara .Petitioner Age : 84 years of Bombay Indian Inhabitant, Occu : Retired, Residing at Bungalow No.127 Ground Floor, August Kranti Marg, Bombay – 400 036. V/s. 1. Municipal Corporation of Greater Bombay .Respondents a statutory body Corporation incorporated under the Bombay Municipal Corporation Act, 1888 and having its office at 1, Mahapalika Bhavan, Mahapalika Marg, Fort, Bombay – 400 001. 2. The Assistant Municipal Commissioner “D” Ward Office, Jobanputra Compound Nana Chowk, Bombay – 400 007. 3. Freny Jambusarwala Age : 75 years, Occu : Housewife of Bombay, Indian Inhabitant, residing at 202, Rang Mahal Apartment Mount Mary Road, Bandra (East) Bombay – 400 050. Mr.G.S.Godbole i/b.Mr.Y.R.Shah, Advocate, for the Petitioner Mr.Kunal Cheema i/b.Mr.Yadunath Chowdhary, Advocate, for Respondent No.3 2 CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 JUDGMENT . The Petition was taken up for final disposal on the last date. 2. By this Writ Petition under Article 227 of the Constitution of India the Petitioner has taken an exception to the Order dated 22nd April, 2009 passed by the trial Court on a Chamber Summons taken by the 3rd Respondent. The Petitioner filed a suit in the City Civil Court at Bombay wherein the challenge was to the notice as well as order passed by the 2nd Respondent under the provisions of section 351 of the Bombay Municipal Corporation Act, 1888 for demolition of the alleged unauthorized structure. The Chamber Summons was taken out by the 3rd Respondent praying that he may be impleaded as a party to the suit. The Chamber Summons was allowed. The said Order was challenged by the Petitioner by filing a Writ Petition No.1450 of 2009 in this Court. By Judgment and Order dated 26th February, 2009 the Writ 3 Petition was disposed of by setting aside the impugned Judgment and Order by which Chamber Summons was made absolute and a direction was issued to the trial Court to hear the Chamber Summons afresh after permitting the 3rd Respondent to file an Affidavit giving proper particulars and details about the nature of his right in respect of the suit premises. After remand, by impugned Order dated 22nd April, 2009, the Chamber Summons has been made absolute. 3. The learned Counsel appearing for the Petitioner submitted that the 3rd Respondent is neither a necessary nor a proper party to the suit. He submitted that the 3rd Respondent has no direct interest in the subject matter of the suit. He invited my attention to the Order dated 26th February, 2009 passed by this Court. He submitted that this Court has held that on the basis of the Affidavit in support of the Chamber Summons it was not possible to come to a conclusion that the 3rd Respondent continued to be in possession of any part of the suit property. He pointed out that a liberty was granted by this Court to the 3rd Respondent to file further Affidavit for setting out the factual position. He invited my attention to the further 4 Affidavit filed by the 3rd Respondent. He submitted that the fabricated documents were produced by the 3rd Respondent. He submitted that though a further Affidavit was filed by the 3rd Respondent, the same does not improve the case of the 3rd Respondent in any manner. He submitted that the impugned Order is illegal and deserves to be quashed and set aside. 4. The learned Counsel appearing for the 3rd Respondent supported the impugned Judgment and Order. He submitted that the 3rd Respondent is a lawful tenant in respect of the suit premises and prima facie the evidence was produced by the 3rd Respondent to show her possession. He submitted that as found by the trial Court, the 3rd Respondent has a direct interest in respect of the suit premises and in fact the proceedings of demolition were initiated on the basis of a complaint filed by the 3rd Respondent. He submitted that in terms of the liberty granted by this Court, an Additional Affidavit in support of the Chamber Summons was filed. He invited my attention to paragraph four of the said Affidavit. He relied upon a decision of the Apex Court in the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of 5 Greater Bombay and Ors. [(1992)2SCC524]. He submitted that as the 3rd Respondent has established his direct interest in the suit property, no case for interference is made out with the discretionary Order passed by the trial Court. 5. I have given careful consideration to the submissions. An Affidavit was filed by the 3rd Respondent in support of the Chamber Summons. In paragraph one of the said Affidavit, the 3rd Respondent has stated thus :- “1. I say that, I have taken out the present Chamber Summons for joining myself as a party Defendant to the above suit since any order that may be passed in the above suit will affect my rights in respect of the suit property. I say that I am the original tenant of the bungalow in which the plaintiffs are unauthorizedly and illegally occupying certain portion in the said bungalow and is occupying three room on the East side of the bungalow. The plaintiffs have illegally constructed a mezzanine floor in the portion of my kitchen and has also encroached and made further illegal shed in the house gully. The plaintiffs have installed illegal sinks which is used and creates serious health problem. The Plaintiffs have also encroached upon the portions below the staircase of the said bungalow.” 6. In the said Affidavit, averments have been made regarding illgal structure made by the Petitioner. The Chamber 6 Summons was opposed by the Petitioner by filing a reply. As pointed out earlier, the Chamber Summons was made absolute by the trial Court. The Order of the trial Court was challenged by the Petitioner by filing a Writ Petition No.1450 of 2009. By Judgment and Order dated 26th February, 2009 this Court passed an Order of remand. This Court in paragraph five observed thus :- “Once the Plaintiff has acquired premises from Freny, it logically follows that the Applicant was not staying in the suit property any more and that the plaintiff alone is in possession of the suit property. If it is so, the question of applicant being added as party to the suit does not arise, for the applicant is neither owner of the suit property nor found to be in occupation thereof so as to hold that the applicant is necessary much less proper party to the suit instituted by the Plaintiff.” Thereafter, in paragraph eight this Court proceeded to observe thus :- “Suffice it to observe that on the basis of averments in the affidavit as filed in support of the Chamber Summons, position regarding factum of possession of the applicant of portion of the suit property is vague. Unless that fact is clearly asserted and substantiated, the question of entertaining request of the applicant for being joined as party defendant does not arise.” Thus, this Court was not satisfied that the averments made in 7 the Affidavit in support of the Chamber Summons were sufficient to accept the case that she continued to be in possession of any part of the suit property. This Court further observed that unless the factual contention regarding factum of alleged possession was clearly asserted and substantiated by the 3rd Respondent, the question of entertaining the request of the 3rd Respondent of being joined as a party Defendant cannot be considered. An Order of remand was passed by this Court to enable the 3rd Respondent file further Affidavit giving proper particulars and details about the nature of the right in the suit property. Paragraph 9 of the impugned order reads thus : “9. Accordingly, the impugned Judgment and Order is set aside. Instead, the Chamber Summons is restored to the file of the Trial Court for being reconsidered after the applicant/Respondent No.3 files further affidavit giving proper particulars and details about the nature of his right in the suit property. Dependent on the finding to be reached in relation to those facts, appropriate order may be passed in accordance with the law in the restored Chamber Summons. All questions in that behalf are left open.” This Court made it clear in paragraph 8 of its order that unless the factum of alleged possession of the 3rd Respondent of a portion of the suit property is clearly asserted and 8 substantiated, the case made out for impleadment cannot be considered. In the further Affidavit filed after the Order of remand, a vague statement was made by the 3rd Respondent in paragraph four thereof which reads thus :- “4. I say that I am in occupation and possession of 4 rooms on south side of the ground bungalow at ground floor admeasuring approx. 600 sq. ft. which is on the south side of the bungalow. I say that major part of ground floor of the bungalow is in my possession. The Plaintiff has done unauthorized work for which I have filed complaints to the Defendant and action has been taken.” Reliance was placed by the 3rd Respondent on certain Electricity Bills and Ration Card. Along with the reply the Petitioner produced communication issued by the Rationing Officer that the Ration Card relied upon by the 3rd Respondent has been cancelled on 13th September, 2006. The Petitioner produced Electricity Bill for the period between 24th May, 2006 to 24th July, 2006 showing the meter was in the name of one Mr. Ketan Shah. A Bill was produced by the 3rd Respondent for the period between 23rd March, 2007 to 24th April, 2007 in her name. The Petitioner produced a Bill for the period between 23rd June, 2008 to 23rd July, 2008 in name of one Mr. Ketan Shah. Thus, reliance was placed by the 3rd Respondent on 9 Ration Card which was canceled in September, 2006. At this stage, it must be noted that in the original Affidavit in support filed on 27th June, 2007, the 3rd Respondent relied upon the same Ration Card which appears to have been canceled in September, 2006. 7. This Court while passing an Order of remand made it clear that unless 3rd Respondent substantiates the case of possession of a part of the suit property, the Chamber Summons cannot be considered on merits. On a plain reading of the Additional Affidavit filed by the 3rd Respondent and the documents relied upon by the 3rd Respondent, it is obvious that the said Respondent could not produce any better material than what was produced earlier to substantiate case of possession. Perusal of the impugned Order shows that the learned trial Judge has not considered the scope of order of remand passed by this Court. A clear finding ought to have been recorded as to whether the 3rd Respondent has substantiated the case of possession. The learned trial Judge merely observed in the impugned Order on perusal of the pleadings it appears that the 3rd Respondent has interest in the suit property and that she has 10 lodged a complaint to the Competent Authority. The trial Court has not considered the effect of cancellation of the ration card and suppression of the said fact by the 3rd Respondent. Merely because the 3rd Respondent had filed a complaint, it cannot be said that the 3rd Respondent has a direct interest in the subject matter of the suit. Reliance was sought to be placed on the decision of this Court in the case of CHANDRAKANT DHARMA BHONU vs. PANDURANG RAMCHANDRA DANDEKAR and another, (2004(2) Mh. L. J. ). In the present case, the impugned Order will have to be tested on the basis of a specific Order of remand passed by this Court, laying down the scope of adjudication after remand. As the case of possession over any part of the suit property was not substantiated by the 3rd Respondent, only on the ground that she claims to be in possession of the part of the property and that she has filed a complaint to the Authority, the Chamber Summons could not have been made absolute. The 3rd Respondent has no direct interest and is neither necessary and nor a proper party to the suit. 8. Hence, the Petition must succeed. I pass the 11 following order :- (i) The impugned Order dated 22nd April, 2009 is quashed and set aside. (ii) Chamber Summons No.663 of 2007 stands dismissed. (iii) It is made clear that observations made by this Court are for a limited purpose of considering the prayer for impleadment made by the 3rd Respondent and none of the observations shall be construed as any finding recorded by this Court on the title claimed by the 3rd Respondent in respect of the suit property. Moreover, this Order will not preclude the 3rd Respondent from filing appropriate proceeding in accordance with law in respect of the suit property. (iv) Petition is allowed on the above terms with no orders as to costs. (A.S.OKA, J.)