1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8162 OF 2009 Devkubai Gonvind Kadu & Ors. ...Petitioners vs. M/s.Sunny BuildTech Pvt.Ltd.& Ors. ...Respondents Mr.S.B.Shetye for the petitioners Mr.N.V.Walawalkar, Senior Advocate i/b Ms Lucy Massey for respondent no.1 CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 P.C.: 1 Rule was issued in this Writ Petition on 25th September 2009. When the petition came up before this Court on 25th January 2010 for hearing as to interim relief, this Court passed an order putting the parties to the notice that the petition will be taken up for final disposal at the time of hearing as to interim relief. 2 With a view to appreciate the submissions made by the learned counsel for the parties, the factual matrix of the case will have to be considered. The present petitioners are the original plaintiffs. The 2nd to 6th respondents are the original defendants. The first respondent is a third party. By the impugned order, the petitioners have been directed to implead the first respondent as a party- defendant to the suit by carrying out necessary amendment. 2 3 The suit filed by the petitioners is for declaration and injunction. The case made out by the petitioners is that the father of the 2nd to 4th petitioners who was the deceased husband of the first petitioner was holding house no.783 and other properties within the limits of gaothan of village Owe. According to the petitioners, the said properties were affected by the acquisition for New Bombay Project. The challenge in the suit is to the notice issued by the 5th respondent dated 27th June 2008.By the said notice ,the petitioners were called upon to remove structures on plot no. 70. Allegation is that without there being any reason, the suit structures of the petitioners have been referred to in the notice as unauthorised structures. The petitioner replied to the said notice. It is contended that the 5th respondent had no authority to declare any structure as unauthorised. It is alleged that on 14th October 2008, the 5th respondent brought special police security for purpose of carrying out demolition of the suit structure. Therefore, the suit filed for challenging the said notice dated 27th June 2008. 4 An application at Exh.38 was made by the first respondent in the suit. In the application it is contended that under a scheme of the State Government which is popularly known as 12.5% scheme, allotment of the said plot no.70 in sector no.27, Kharghar, Navi Mumbai was made on 12th October 2007 in favour of the original owners Smt.Babibai Katkari and others. It is stated that on 25th March 3 2008 that there was a tripartite agreement executed by and between the 1st respondent by which the said plot was transferred to the first respondent and that the said document has been registered. It was contended that the first respondent was a necessary party to the suit. The said application was opposed by the petitioners by filing a reply. It was contended that tripartite Agreement relied upon by the first respondent was void ab-initio. 5 By the impugned order, the learned trial Judge proceeded to allow the said application by holding that in view of the lease agreement and tripartite agreement, the first respondent has established its interest in the suit property. 6 The submission of the learned counsel for the petitioner is that the first respondent is neither a necessary nor a proper party to the suit. He submitted that the structures which are sought to be protected by filing the present suit are in existence since last several years from a date even prior to initiation of acquisition proceedings. He submitted that even assuming that the first respondent has any right in respect of the land below the structures, the said respondent has not claimed any right, title or interest in respect of the structures which are sought to be demolished. He submitted that the first respondent has no direct interest in the structures which are subject matter of the suit and therefore, the first respondent is a neither necessary nor a proper party to the suit. 4 7 The learned senior counsel for the first respondent placed reliance on the decision of this Court in the case of Adam A. Sorathia & another Vs. Municipal Corporation of Greater Bombay & another [(2002 4 Bombay Cases Reporter 419]. He also placed reliance on the decision of the Apex Court in case of Aliji Momonji and Co. Vs. Lalji Mavji [1996 (5) SCC 379]. He submitted that the respondents are claiming to be the title holders of the plot below the suit structures and therefore, they are necessary and proper parties. 8 The learned counsel for the petitioners submitted that the ratio of the aforesaid decisions will not apply to the present case in as much as in the case before the Apex Court as well as this Court the third party was claiming to be a landlord and owner of the structure in which notice of demolition was issued. He submitted that the structures in respect of which relief has been claimed were in existence even before the date of initiation of the acquisition proceedings and therefore, the said decisions will have no application. 9 I have given careful consideration to the submissions. It is not in dispute that the structure in respect of which suit is filed is situated on plot no.70 in sector 27 village Owe in Navi Mumbai. The first respondent placed reliance on the agreement of lease dated 12th October 2007 executed by the City and Industrial Development Corporation in favour of one Smt.Babibai Katkari and others. The 5 said agreement has been duly registered under the provisions of Indian Registration Act, 1908. A reliance has been placed on the tripartite agreement dated 18th March 2008 executed by and between the City and Industrial Development Corporation of Maharashtra Limited, Smt.Sharda Katkari who is the one of the six lessees under the agreement dated 12th October 2007 and the 1st respondent. It is provided in the agreement that the City and Industrial Development Corporation of Maharashtra Limited in pursuance of the agreement of lease shall grant the said plot no.70 to the first respondent. There is a recital in the said agreement that the 5 other lessees under the agreement of lease have relinquished their right, title or interests in the said plot in favour of the said Sharda. The said tripartite agreement executed by the lessor has been duly registered. Thus, as of today, it can be said that the first respondent has established prima facie title to the plot below houses in respect of which the relief has been claimed in the suit. 10 The question is whether the first respondent has a direct interest in the property subject matter of the suit. On this aspect it will be necessary to consider the decision of the Apex Court in the case of Aliji Momonji (supra). The case before the Apex Court arose where the plaintiff had filed a suit for injunction against the Municipal Corporation of city of Greater Bombay restraining the said Corporation from demolishing a portion of a building. An application for impleadment was made by the third party claiming to the owner and landlord. The 6 question before the Apex Court was whether the third party was a necessary and a proper party. In paragraph 6 of the said decision, the Apex Court observed that in the event the building is demolished, the right, title or interest of the landlord would be directly affected and therefore, the landlord was a necessary party. 11 The said decision of the Apex Court has been considered by this Court in the case of Adam A.Sorathia & another. In paragraph 17 of its decision this Court has held thus : 17.Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining the Corporation for demolishing the structure. In Ramesh H. Kundanmal V. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which were moveable on wheels and plates where 7 servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent no.2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was not a matter which was to affect the legal rights of the landlord in that case. In the instance case, the landlords would be entitled to place all the facts before the trial court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely. This Court observed that one of the issues before the Court trying the suit was whether the alleged construction sought to be demolished is a sanctioned construction or not. Thereafter, this Court proceeded to observe that the landlords or the owners of the premises would be better persons to throw adequate light on the controversy and that is why they would be proper parties to the suit where a relief sought as against the local authority for perpetual injunction restraining the authority from demolishing the structure. This Court has recorded the reason why the owner will be a proper party to such a suit. In the present case ,the first respondent has prima facie established title to the land below the suit structures. The structures have been erectd on the plot of land in respect of which the right, title or interest has been established by 8 the first respondent. Hence , the first respondent has a direct interest in respect of the suit structures. Therefore, aforesaid decision of this Court in case of Adam A. Sorathia & another (supra) cannot be distinguished on the ground that the first respondent has no concern with the structures. In the circumstances, impugned order will have to be confirmed on the ground that the first respondent is a proper party to the suit. The trial court has observed that the first respondent has an interest in the suit property. The said finding cannot be faulted with. Hence, no case is made out for interference. Petition is rejected. Rule is discharged. No costs. 12 It must be clarified that the observations made in this Judgment are for limited purpose of deciding the controversy whether the first respondent is a proper party to the suit. The observations made regarding title of the parties are in the context of the prayer made in the application at Exh.38 and the same shall not be construed as any adjudication or any finding on the issue of title. JUDGE