Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS NO. 884 OF 2018
CNR. NO. MHCC010066092018
IN
S.C. SUIT NO. 6910 OF 1978
(H.C. SUIT NO.1562 OF 1978)
Municipal Corporation of Greater Mumbai ]
Annex Building, Mahapalika Marg, Fort ]
Mumbai – 400 001. ]...Applicant.
IN THE MATTER BETWEEN
Rustom D Dalal and Ors. ]...Plaintiffs.
V/s.
The Union of India and Ors. ]...Defendants.
Appearance :
Advocate Ms. Ghosh for the Applicant.
Advocate Mr. Shetty for the Plaintiff.
Advocate Mr. Rajguru for defendant Nos. 1 to 4.
Advocate Mr. Dheeraj Kamble h/f. Advocate Mr. Kudalkar for defendant
Nos. 5 to 8.
CORAM : HIS HONOUR JUDGE
SHRI NANDKISHOR L. MORE
(Court Room No.12)
DATED : 13th JULY, 2018.
O R A L O R D E R
This Chamber Summons is taken out by the Municipal
Corporation of Greater Mumbai applicant herein to implead them as
party defendant and for permission to undertake the work of
widening/construction of Kadriay Nagar Nalla which is located and
passes through the some part of suit property.
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:2: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
2. The present suit is being filed for declaration of ownership
in respect of suit property. It is the contention of the applicant that, they
do not have any right and/or title in the suit property, however seeks
intervention in the suit proceeding as the applicant wants to undertake
the trenching, widening and construction of one Kadriya Nagar Nalla
which is carved on the land which falls under the suit property and
subjudice before this Court. The said Kadriya Nagar Nalla is Katcha
Nalla and is a part of Catchment area No.311. The Nalla caters the rain
water flow from P.L. Lokhande Marg, adjoining slums of Shreenagar,
Amir Baug, Kadriya Nagar etc. also caters the dry weather flow from the
adjacent slum area. The nalla travels @ 575 meter and meets the major
nalla i.e. Subhash Nagar Nalla near Narayan Guru High School on its
downstream.
3. The local Councilor for this area, Smt. Sangeeta Handore
and Shri Chandrakant Handore had been making numerous
correspondence with it cautioning about the imminent devastations
likely to strike to the public residing near the area and/or the
consequential damages to the people and property there around, due to
the overflow of nalla water as it is totally filled and however, flowing
but may worsen at anytime during and after the monsoon. Therefore,
the applicant in the interest of public policy in order to prevent the loss
of lives and damage of properties, appointed a consultant who has
suggested certain measures with respect to augmentation and
construction of Kadriya Nagar Nalla and said that Kadriya Nagar Nalla
should be trained with a width ranging 4.00 meters to 10.00 meters.
However, since the said nalla exists on the land owned by Salt
Commissioner, the applicant approached its office and sought the NOC
from the Salt Authorities vide letters dated 21.06.2015 and 04.03.2017
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:3: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
but still the NOC could not be procured. The Salt Commissioner has
remarked that Court matter is under process and the said premises is
in the possession of the Court Receiver of the High Court. This
necessitates that prior to undertake the said work of
trenching/widening/construction of Kadriya Nagar nalla, NOC from the
Court needs to be obtained for which applicant needs to intervene in
the matter suitably. Hence, this Chamber Summons and also sought
directions to the plaintiffs to amend the suit title and add the name of
the applicant as a proposed defendant and/or allow this Chamber
Summons make it absolute in terms of the NOC to undertake the
proposed construction work of Kadriya Nagar nalla.
4. Plaintiff and defendant filed their reply and strongly
objected to grant this Chamber Summons. It is contended by defendant
Nos. 1 to 4 that, as the nalla is running from the suit property carrying
sewage water through the suit property which is of ownership of the
defendants, it cannot be said to be a municipal drain, nor the
Commissioner is entitled to construct any new drain in any land where
the Municipal drain was lawfully constructed by the Municipal
Corporation. The compensation has to be paid to the defendants the
Union of India (Salt Department) which, as per the Transfer Rules,
would be entitled for payment of market value of the land by acquiring
the same, as exercise of such power for said drain on the Central
Government land amounts to acquisition of the suit property by which
the defendants will be suffering damage. The said nalla does not vest or
belongs to the Corporation or is within the control of the Commissioner
nor are the applicants entitled to have any control over such nalla. The
Municipal drainage referred to by the applicant is only a natural flow of
water and not a nalla constructed by the applicant or any other
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:4: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
authority. Therefore, it is contended that applicant is not necessary
party and cannot seek permission from the Court to undertake the
widening or constructing work of nalla without appropriate acquisition
to its proceeding.
5. Plaintiff also filed reply to this Chamber Summons and
contended that, applicant is neither a proper and much less a necessary
party to the present proceedings. Thus the addition of the name of the
applicant as a party defendant is totally redundant to say the least. The
suit property is not in possession of the Court Receiver till date. The
present application is taken out for a limited relief to allow the
applicant to undertake the work of trenching/widening/construction of
Kadriya Nagar nalla. Since, admittedly, the applicant is not going to be
a contributory at all, in so far as the main dispute is concerned, the
question of the applicant being added a party defendant simply does not
arise.
6. Heard the Ld. Advocate Ms. Ghosh for the applicant and
the Ld. Advocate Mr. Shetty for the Plaintiff and the Ld. Advocate Mr.
Rajguru for the defendants.
7. By way of this Chamber Summons applicant seeks
permission of the Court to undertake the widening/construction of the
nalla. It is not in dispute that the nalla is passes through the suit
property. The Ld. Advocate for the applicant vehemently submitted
that, as per Section 222 of the Mumbai Municipal Corporation Act,
1888, applicant is authorize to undertake such widening work
independently without concurrence of owner of property after given
reasonable notice.
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:5: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
Section 222. “The Commissioner may carry any municipal drain through,
across or under any street, or any place laid out as or intended for a
street; or under any cellar or vault which may be under any street, and,
after giving reasonable notice in writing to the owner or occupier, into,
through or under any land whatsoever within [Brihan Mumbai], or, for
the purposes of outfall or distribution of sewage, without [Brihan
Mumbai]”. It is further pointed out that, as per sub section 2 of said
Section, it is provided thus “ The Commissioner may enter upon, and
construct any new drain in the place of an existing drain in, any land
wherein any municipal drain has been already lawfully constructed or
repair or alter any municipal drain so constructed”.
“In the exercise of any power under this section, as little damage as
can be and shall be done, and compensation shall be paid by the
Commissioner to any person who sustains damage by the exercise of such
power”.
8. Perused the Chamber Summons and plan annexed to it. As
per draft master plan report, consultant M/s M W H (I) Pvt. Ltd. has
suggested to train the katcha nalla as per the DPR Plan, on perusal of
detailed description of the proposed nalla, the proposed width of the
said nalla is shown upto 4.3 meters.
9. It is submitted on behalf of defendant Nos. 1 to 4 that, in
case the land is very much essential, it is required to be acquired by the
applicant for the public utility purpose, they must follow the procedure
under the provisions of the General Financial Rules and may acquire the
land after getting prior necessary sanction/approval from the
Government of India. Applicant have no valid ground for taking out the
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:6: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
present Chamber Summons for amendment of the suit and by adding
the applicant as proposed defendant, as per Order I Rule 10 of the Code
of Civil Procedure, 1908 does not permit the same. Admittedly, the
applicant are not the owner of the suit property and thus simply sought
permission of the Court to undertake widening or constructing of the
said nalla without undertaking appropriate acquisition proceeding.
Therefore, I do not find applicant are the proper or necessary party to
adjudicate the dispute between the plaintiff and defendant no.1.
10. Needless to mention here that, as per Section 222 of the
Mumbai Municipal Corporation Act, 1888, applicant is entitled to carry
out construction on existing nalla situated within the jurisdiction of the
Mumbai Municipal Corporation after reasonable notice to the owner of
property, but there is no prima facie evidence to indicate existence of
such lawfully constructed drain at the site, before adjudicating of right
of the parties herein it is impossible to grant NOC as sought by
applicant at this stage, since the relief sought by the applicant in
Chamber Summons is not directly related to the subjectmatter of the
case. I find the Chamber Summons is devoid of merits. Hence, the
Order:
O R D E R
Chamber Summons No. 884 of 2018 stands rejected.
Date : 13.07.2018 [N.L. MORE]
Judge, City Civil Court,
(C.R. No.12), Gr. Mumbai.
Dictated on : 13.07.2018
Typed on : 16.07.2018
Signed by HHJ on : 24.07.2018
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:7: Ch. Sum. No.884/2018 in S.C. Suit No.6910/1978
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.07.2018, 01:30 p.m. SUBHASH S. POUL
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI NANDKISHOR L. MORE
(Court Room No.12)
Date of Pronouncement of
JUDGEMENT/ORDER
13.07.2018
JUDGEMENT/ORDER signed by
P.O. on
24.07.2018
JUDGEMENT/ORDER uploaded on 25.07.2018
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