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2018 Supreme(Bom) 2198
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shalini Phansalkar-Joshi, J.
Rajnish Kumar Jain - Appellant
Versus
Thane Municipal Corporation - Respondent
Writ Petition No. 11678 of 2017
Decided On : 28-02-2018
Mr. P.S. Dani, Senior Counsel, with Mr. Roshan Tanna, Mr. Rahul Sinha, Advocates i/by M/s. DSK Legal, for the Appellants; Mr. Akshay Kalodia, i/by M/s. J. Shekhar and Co, for the Respondent No. 1; Ms. Sheetal James, Advocate, for the Respondent No. 2 is present in person
The main legal point established in the judgment is that parties must be directly or legally interested in the action, and the litigation should affect their legal rights to justify intervention and impleadment in the suit.
Headnote:
Intervention - Civil Procedure Code - Order 1 Rule 10 - Maharashtra Regional and Town Planning Act, 1966 - Sections 52, 53(1) - Bombay Tenancy and Agricultural Lands Act, 1948 - Section 70(b) - MRTP Act, CPC - [Order 1 Rule 10 of the Civil Procedure Code, 1908, Sections 52 and 53(1) of the Maharashtra Regional and Town Planning Act, 1966, Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948] - The court discussed the intervention under Order 1 Rule 10 of the Civil Procedure Code, 1908, and the rights and interests of the parties under Sections 52 and 53(1) of the Maharashtra Regional and Town Planning Act, 1966, and Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948. The court emphasized the necessity of parties to be directly or legally interested in the action and the effect of the litigation on their legal rights, ultimately influencing the decision to allow the intervention.
Fact of the Case:
The Petitioners challenged the order allowing intervention and impleadment in a suit filed under Article 227 of the Constitution of India. The suit was for the relief of declaration that notices issued by the Municipal Corporation were illegal and sought restoration of demolished construction.
Finding of the Court:
The court found that the intervention of Respondent Nos. 2 and 3 was necessary as their rights and interests were directly affected by the result of the action in the suit. The court also noted the likelihood of conflicting decisions if Respondent Nos. 2 and 3 were not allowed to be impleaded in the suit.
Issues: The issues involved the necessity of intervention and impleadment in the suit, the rights and interests of the parties, and the effect of the litigation on their legal rights.
Ratio Decidendi: The court held that parties must be directly or legally interested in the action and the litigation should affect their legal rights to justify intervention and impleadment in the suit.
Final Decision: The Writ Petition was dismissed, and the intervention of Respondent Nos. 2 and 3 in the suit was upheld.
JUDGMENT
Shalini Phansalkar Joshi, J. - Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Dani, learned Senior Counsel for the Petitioners, Mr. Kalodia, learned counsel for Respondent No. 1, and Ms. James, Respondent No. 2, who is appearing in person.
2. By this Writ Petition, filed under Article 227 of the Constitution of India, the Petitioners are challenging the order dated 14th September 2017 passed by the 4th Joint Civil Judge, Senior Division, Thane, below "Exhibit-18" in Regular Civil Suit No. 172 of 2017.
3. The application at "Exhibit-18" was filed before the Trial Court by Respondent Nos. 2 and 3, under Order 1 Rule 10 of the Civil Procedure Code, 1908, seeking permission for their intervention and impleadment in the Suit. The Trial Court has, vide its impugned order, allowed the said application holding that presence of Respondent Nos. 2 and 3 is utmost essential for deciding the veracity of the suit notices, more particularly, when the Plaintiffs, i. e. the present Petitioners, are claiming themselves as ''owners'' of the suit land.
4. While challenging this order of the Trial Court, the submission of learned Senior Counsel for the Petitioners is that, the Suit is filed by the Petitioners only for the relief of declaration that the notices issued by Respondent No. 1-Municipal Corporation on 24th November 2015, 3rd March 2016 and 14th March 2016 are illegal, null and void and they should be quashed and set aside. It is submitted that, as the construction, which is carried out by the Petitioners on the suit land, is already demolished by Respondent No. 1-Municipal Corporation, this action of Respondent No. 1-Municipal Corporation in demolishing the entire suit structure is also null, illegal and void and the Petitioners have, therefore, sought a direction from the Court to Respondent No. 1- Municipal Corporation to restore the suit structures.
5. It is submitted by learned Senior Counsel for the Petitioners that, the notice dated 24th November 2015 was issued under Sections 52 and 53(1) of the Maharashtra Regional and Town Planning Act, 1966, (for short, "MRTP Act"), alleging therein that, certain additional constructions, which were carried out by the Petitioners, were against the ''Sanctioned Plan'' and, therefore, the Petitioners were directed to demolish those constructions only. However, it is now a matter of record that, not only the additional construction, but the entire construction is demolished by Respondent No. 1-Municipal Corporation. According to learned Senior Counsel for the Petitioners, the fact remains that the Petitioners'' right to carry out such construction in the suit property was not disputed as such by Respondent No. 1-Municipal Corporation, as the impugned notices were only in respect of the additional construction, which was not permitted under the ''Sanctioned Plan''.
6. Thus, the submission of learned Senior Counsel for the Petitioners is that, in the Suit of such a nature, where only the notices issued by the Municipal Corporation, under Sections 52 and 53(1) of the MRTP Act are challenged, the presence of a third party, like Respondent Nos. 2 and 3, is not at all essential. Whatever alleged rights they may be having in the suit property, those rights will not be considered in this Suit. Moreover, Respondent Nos. 2 and 3 had already filed a Suit, bearing Regular Civil Suit No. 824 of 2013, in respect of their rights over the suit property and in the said Suit, all their contentions and rights can be decided completely and effectually. Therefore, their intervention is not at all warranted in the present Suit, which is filed by the Petitioners only for a limited purpose of declaring the notices issued by Respondent No. 1- Municipal Corporation as illegal and directing Respondent No. 1- Municipal Corporation to restore the demolished construction. It is submitted that, as the scope of the Suit is very limited, by allowing the impleadm
