Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 93018
CNR No. MHCC010070042018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.930 OF 2018
IN
SUIT NO.9800 OF 1990
(HIGH COURT SUIT NO.1338 OF 1990)
Godrerj & Boyce Mfg. Co. Ltd., ...Plaintiff.
V/s.
S.H. School,
Addl. Collector (ENC) Bombay and
BSD and Ors. ...Defendants.
And
Pantharnagar Cooperative Housing ...Applicant /proposed
Society (Prop.). Defendant.
Appearances:
Ld. Adv Dalal for plaintiff.
Ld. Adv. Dinesh Sarode for applicant /proposed defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 26th FEBRUARY, 2019
ORDER
1. This is chamber summons taken by Pantharnagar Cooperative
Housing Society who are impleading as defendant.
2. Applicant's contention in chamber summons is that the members
of the applicant society are the hutment dwellers and as per the
provision of Maharashtra Slum Area and land clearance and
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rehabilitation Act, 1971, the State Government has taken appropriate
steps to declare the suit property under section 4 of the Act. Since the
said declaration is in the interest of the member of the applicant society,
applicant is necessary party to the suit. It further contended that in the
month of December, 2018 the Government of Maharashtra has issued
direction to concerned Additional Collector, Mumbai Eastern Suburb to
take action as per the provision of section 4 of the said Act. Hence,
these facts are required to be brought on record of this Court by joining
the applicant as party defendant to this suit. If the applicant is joined as
party defendant in this suit no harm or prejudice will be caused to the
plaintiff. On the contrary, if the applicant has not joined as party
defendant to this suit great harm prejudice will be caused to the
applicant which cannot be compensated in terms of money. With this,
society prayed for allowing to implead as a defendant and direct the
plaintiff to supply copy of the entire suit alongwith its compilation of
documents to defendant.
3. The plaintiff filed reply to chamber summons. Plaintiff's
contention is that present impleadment application is an abuse of
process makes false averments and is barred. The applicants state they
are slum dwellers of Pantharnagar but they did not produce any
evidence or proof. It further contended that applicants incorrectly
represent the Pantharnagar is on the suit property. Notably, Chamber
Summons no.1342 of 2008 which was filed by the Pantharnagar Co
operative Housing Society (Proposed) seeking impleadment of the said
society. In the said chamber summons, it was stated that on the suit
land which is declared as slum, the entire land is lying vacant.
Accordingly, the present applicants are to their own knowledge
attempting to mislead this Court in present chamber summons.
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Application by contending that Pantharnagar Cooperative Housing
Society slum is located on the suit property. Further the said society
withdrew its chamber summons by order dated 26.11.2008.
Accordingly, a fresh application for impleadment by the applicants, who
appear to be members of the said society is barred. Moreover, the fact
that the earlier application was filed in the year 2008 demonstrates that
the applicants had knowledge about the present suit for over 10 years
and the present impleadment application has been filed belatedly at an
advanced stage of the suit.
4. Plaintiff's further contention is that applicants are not necessary
nor proper parties to the present suit and the plaintiff company is not
desirous of joining them as defendants to the present suit. Applicants
do not reside on the suit property and are in no way concerned with the
outcome of the present suit. Their impledment would only raise issues
beyond the scope of the present litigation. It further contended that
purported report dated 12.11.2014 annexed to notice of motion dated
11.06.2018 for setting aside exparte order filed by defendant no.6. On
a bare perusal of the document, it appears that the site visit referred to
by the applicants as having taken place on 25.08.2008 and 23.09.2008
were for the purpose of the declaring the colony known as
Pantharnagar as a slum. Therefore, by their own document, it is clear
that the applicants are not residing on the suit property and are
occupying another area in respect of which they have made an
application for declaration as a slum. The said application has not been
granted till date therefore, it appears that the applicants are attempting
to mislead this Court by making false statements on oath. The plaintiff
denied contention of the applicant in chamber summons in toto. With
this, prayed dismissal of chamber summons.
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5. I have heard Advocate for both the parties.
6. Advocate for applicants in chamber summons submitted that
applicant is proposed society of resident in the property of which suit is
filed. He further submitted that plaintiff suit is for declaration that no
valid declaration exists under section 4(1) of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act, 1971 in
respect of the suit lands and that the provisions of the said Act could not
be applied until such declaration is made. The plaintiff seeking
injunction restrained the defendant no.1 to 4 from treating the colony
on the suit lands as a slum area under the said Act and from taking any
action under the provisions of the said Act until a valid declaration is
made under section 4(1) of the said Act in respect of the suit lands. He
further submitted that Deputy Collector and Competent Authority, Sub
Division, Kurla in exercise of the powers conferred under section 4(1) of
the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act and for the Protection of Occupiers from Eviction
and Distress Warrants), Act, 1971, declare the said areas to be slum
areas and schedule of areas is local name of the area and village Godrej
Compound (near Highway East) CTS No.189 part, area 7850 square
meters so, the area is declared as slum and if applicants are not joining
as a defendants any order passed in this suit affects the rights of the
applicants so, applicants be joined as a defendant.
7. Advocate for plaintiff submitted that applicant is not a necessary
or proper party. He submitted that still land is not declared slum. He
submitted that earlier Chamber Summons no.1342 of 2008 was
withdrawn. Land is vacant from 1995 and today it also vacant. It is the
choice of the plaintiff to whom is made party and the dispute is between
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plaintiff and the Government Authority about declaration of slum so,
the applicant's chamber summons is not proper and necessary party. He
submitted that necessary parties are those persons in whose absence no
decree can be passed by the Court or that there must be a right to some
relief against some party in respect of the controversy involved in the
proceedings and proper parties are those whose presence before the
court would be necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions involved in
the suit although no relief in the suit was claimed against such person.
He relied upon Kasturi V/s. Iyyamperumal and Ors., (2005) 6 SCC
733, Mumbai International Airport Pvt. Ltd., V/s. Regency
Convention Centre & Hotels Pvt. Ltd. & Ors., AIR 2010 Supreme
Court 3109, Francisco Rodrigues and Ors., V/s. Angelica Rebello,
MANU/MH/1605/2010. He further pointed out that in earlier
Chamber Summons no.1342 of 2008 taken by present applicants have
admitted the plaintiff contention that somewhere in the year 198081
the entire members of the intervenor society have been shifted to the
adjoining land and after the members of the adjoining society were
shifted to the other part of the land bearing survey no.62 (part) which
is declared to be slum is lying completely vacant so, the intervenor
cannot be impleaded as defendant in suit.
8. Advocate for applicant filed documents like Government letter
dated 29.11.2018, 05.06.2018 and circular dated 05.06.2018. It shows
that Pantharnagar society made an application for declaration of slum
area out of CTS No.65 part and city no.189 part which is pending
before the competent authority.
9. I have gone through the plaint and written statement filed by the
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defendant no.1. Plaintiff filed suit against defendant nos.1 and 2 who
are Additional Collector and Deputy Collector of Competent Authority.
Defendant no.3 is Municipal Corporation of Greater Bombay.
Defendant no.4 is a Ward Officer. Defendant no.5 is a Police
Commissioner. Defendant no.6 is a rank trespasser. Defendant nos.7 to
9 are staying in the said colony on the suit land as labour employed by
the plaintiff's contractor but they are creating terror with the help of
outsider so, plaintiff claim injunction against defendant nos.7 to 9.
Plaintiff's contention is that plaintiff is having title of the land. The
State Government filed suit in the year 1973 bearing no.679 of 1973 for
declaration that the lands in the suit, which include the suit lands more
particularly described did not belong to the plaintiffs but belongs to the
State Government and suit is pending. Plaintiff's contention is that they
have been engaged in the construction work on the plaintiffs' property
at Vikhroli and have built many factory sheds, office buildings and
residential quarters for their workers on the vast lands belonging to the
plaintiff which is in the nature of a transit labour camp. Plaintiffs haven
been shifting the site of the labour camp from time to time.
10. Plaintiff's further contention is that defendant no.2 by a
notification dated 30.10.1978 published in the Government Gazette
dated 07.12..1978 issued under section 4(1) of the Maharashtra Slum
Areas (Development, Clearance and Redevelopment) Act, 1971
declared the plaintiffs land bearing CTS no.189 (part) admeasuring
7850 sq. mtrs., as a slum area. Plaintiff gave reply to the said
notification and pointed out that hutments of the suit land were of
temporary nature and were meant for housing migrant labour force
engaged in the construction work at the plaintiffs property. Thereafter,
defendant no.2 wrote a letter to the plaintiff on 29.06.1989 appointing
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slum dwellers for inspection of the site. Defendant no.2 inspected the
site which was found vacant and thereafter no further action or
proceedings followed or was taken by the defendant nos.1 and 2 under
the provisions of the said Act. However, defendant nos.6 to 9 started
enticing the residents of the colony using force and threats for
preventing the labour residing in the colony from coming to work and
disturbing the peace of the colony. Therefore, plaintiff was forced to
report the matter to the police authorities. Plaintiff's contention is that
defendant nos.6 to 9 with the help of outsider and miscreants are bent
upon creating terror by taking the law in their own hands and
preventing the residents from living peacefully and to do their labour
work. Defendant nos.6 to 9 have been propogating that they will see to
that, that the labour residing in the said camp is allotted by the State
Government, the land covered by the hutments and that all actions and
steps will be taken by them.
11. Plaintiff's further contention is that provisions of the said Act do
not apply to the suit lands in question for reasons set out in the
plaintiffs reply dated 04.05.1988 and in any event Suit no.679 of 1973
pending in Hon'ble High Court. It further contended that no
declaration has been made under any provisions of the said Act with
regard to the suit lands in question and that until a valid declaration is
made and other provisions of the said Act have been complied with
defendant nos.1 to 4 are not entitled to interfere in any manner under
the provisions of the said Act with the private property of the plaintiff.
12. Defendant no.2 filed written statement and contended the suit.
Defendant's contention is that in the year 1976 at the time of census, it
was found that there are hutments on the part of the CTS no.189 (part)
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and there were no basic amenities provided by the so called land owner,
competent authority declared the land admeasuring 7850 sq. mts., out
of CTS no.189 (part) occupied by the said hutments to the slum area
under section 4(1) of the Slums Act on 30.10.1978. No appeal was
preferred against the said declaration to the Tribunal by the plaintiffs.
It further contended that there is no provision in the Slum Act to shift
the occupier from one place to another in declared slum areas without
prior permission of the competent authority. Defendant's contention is
that plaintiff in order to escape from the liabilities arising under slums
Act and in order to prevent the acquisition proceedings have taken a
false plea that hutments on the suit lands were of temporary nature and
were meant for migrant labour force engaged in the construction work
at the plaintiffs property.
13. Issues have been framed on 22.01.2008. The matter is fixed for
hearing. The applicant who filed chamber summons in the Hon'ble
High Court was withdrawn in the year 2008. I find that in the present
case, dispute is between plaintiff and defendant nos.1 and 2 about the
declaration of the slum area. The applicants have not produced any
documents to show that they are in occupying hutments slum in suit
property. As per the well settled principle without impleading the
applicant suit can be decided so, I find that the applicant is not
necessary nor proper party. They have already made an application for
declaration of slum area. In this circumstance, I find that it is not
necessary to the applicants to implead as a defendant. It is the choice of
the plaintiff to whom he is to be made party. In this circumstance,
chamber summons is liable to be dismissed and accordingly, I proceed
to pass the following order :
O R D E R
1. Chamber Summons No.930 of 2018 is hereby dismissed.
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2. Chamber Summons No.930 of 2018 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 26/02/2019 City Civil Court, Gr. MUMBAI
Dictated on : 26/02/2019
Transcribed on : 26/02/2019
Signed on : 26/02/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
27.02.2019 3.06 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
26.02.2019
JUDGEMENT /ORDER signed by
P.O. on
26.02.2019
JUDGEMENT /ORDER uploaded
on
27.02.2019
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