935-OSWPL-17565-2023+.

DOC

Amol

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 17565 OF 2023

Ashok Sohanlal Jain …Petitioner

Versus
The Municipal Corporation of Greater Mumbai …Respondent

WITH
WRIT PETITION (L) NO. 22294 OF 2022

Abhishek Anand Chavan & Anr …Petitioners

Versus
The Municipal Corporation of Greater Mumbai …Respondents
& Ors

Mr Simil Purohit, with Arsil Shah & Rajesh Shah, i/b Parisha Shah
for the Petitioner in WPL/17565/2023.
Dr Uday Warunjikar, with Sumit Kate, i/b Uday Warunjikar, for the
Respondent WPL/22294/2022.
AMOL Mrs PH Kantharia, with Pooja Yadav, for MCGM in
PREMNATH
JADHAV WPL/22294/2022.
Digitally signed by
AMOL PREMNATH
JADHAV
Date: 2023.08.22
10:07:53 +0530

CORAM G.S. Patel &

Kamal Khata, JJ.
DATED: 21st August 2023
PC:-

1. We are constrained to observe that the conduct of the

Petitioner in Writ Petition (L) No. 17565 of 2023 does not leave

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much to be desired. It leaves everything to be desired. That

Petitioner claims that a particular structure said to be of the
occupancy/tenancy of one Sunbeam Automobiles at Plot No. 1049,
TPS No. IV, Mahim Division is an authorised structure, and that
the Petitioner is entitled to a transfer of that tenancy. Ashok Jain,
the present Petitioner, had not initially filed a Writ Petition. Writ
Petition (L) No. 22294 of 2022 was filed by Abhishek Anand
Chavan and Anand Bapuji Chavan who claimed to be the owners of
the adjacent property. The prayer in that Petition was for a
mandamus to the authorities to take action against illegal
construction and encroachments on the Chavans’ abutting or
adjacent property and to prevent further encroachments.

2. On 13th June 2023, Ashok Jain sought to intervene in the

Chavans’ Writ Petition by filing Interim Application No. 326 of
2023. The Division Bench of Sunil B Shukre and RN Laddha, JJ
made the following order on 13th June 2023.
“1. Heard learned counsel for the respective parties.
2. Since the prayer made in the petition is only in
respect of certain structures, which have been stated to be
unauthorised structures, we do not find it necessary that the
intervener-applicant would be a necessary party here.
Besides, if intervener-applicant has any grievance, he is at
liberty to pursue his cause for redressal of his grievance
separately.
3. At this stage, Mr Warunjikar, learned counsel for the
petitioners submits that the intervener-applicant has
already filed a Civil Suit bearing L.C. Suit No. 1565 of 2021
and it is pending before the Civil Court.
4. Learned counsel for the intervener-applicant submits

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that the petitioners have made an attempt to extort certain

money from the intervener-applicant. The intervener-
applicant, as stated earlier, is at liberty to pursue
independent remedy for redressal of his grievance. The
Intervention Application is, therefore, rejected.”

3. What happened thereafter was remarkable. Ashok Jain filed a

separate Writ Petition (L) No. 17565 of 2023 on 26th June 2023.
The prayer in that Petition is against the Municipal Corporation of
Greater Mumbai (“MCGM”) to decide the application for transfer
of tenancy. The only Respondent to that Writ Petition is the
MCGM. Despite the 13th June 2023 order passed by this Court on
Ashok Jain’s own intervention Interim Application, Ashok Jain did
not make the Chavans party respondents to his Writ Petition. He
moved Court on 7th August 2023 and the Division Bench of Sunil B
Shukre and Rajesh Patil, JJ passed an order issuing notice, directed
that no coercive action be taken against Ashok Jain in respect of the
subject structure till the next date and that his Petition be tagged
along with that of the Chavans.

4. Oddly enough, Ashok Jain’s Petition in paragraphs 3.15, 3.16

and 3.17 says:
“3.15 In the meantime, the forestated disgruntled person
seeking to target the Petitioners once again instituted
a Writ Petition (St) No. 22294 of 2022 (Abhishek
Anand Chavan & Anr Vs Municipal Corporation of
Greater Mumbai & Ors). The allegations were made
without ascertaining the true and correct facts with
respect to the Petitioner’s status and structures. The
same was done as the Petitioner had refused to
accede to the monetary extortion demands of the

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Petitioner the said Abhishek Anand Chavan. The

Petitioner was not made a party to the said Petition
and thus the Petitioner, being the proper and
necessary party, preferred an Application to be
joined as a Party Respondent. Hereto annexed and
marked as EXHIBIT- “Q” is a copy of the said
Application. The Hon’ble Court was pleased to
dispose of the same while granting liberty to the
Petitioner to avail the remedies available under the
law. Hereto annexed and marked as EXHIBIT –
“R” is a copy of the final Order of disposal as passed
by this Hon’ble Court.
3.16 In the meantime, during the hearing of the
Application for updating the Tenancy rights, the
Respondents refused to decide on the application
citing the pendency of Writ Petition (St) No. 22294
of 2022 (Abhishek Anand Chavan & Anr Vs Municipal
Corporation of Greater Mumbai & Ors).
3.17 Under the guise of the pending Writ Petition, the
Respondent Corporation is abdicating to decide on
the Petitioner’s application. The Petitioner is being
deprived of its rights on the basis of a Petition to
which the Petitioner is not even a Party. The subject
matter of the Writ Petition (St) No. 22294 of 2022
(Abhishek Anand Chavan & Anr Vs Municipal
Corporation of Greater Mumbai & Ors) is not even
remotely connected to adjudication of the tenancy
rights. This ultimately stands molded as the
Impugned Order.”

5. We have no manner of doubt that the omission to join the

Chavans to Ashok Jain’s Petition was deliberate. Had the Chavans
been joined, they would have pointed out, possibly, additional

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factors even at the time of the 7th August 2023 order. Having once
attempted to intervene in the Chavans Petition and having failed in
that attempt, we do not think it was remotely appropriate or proper
for Ashok Jain to institute a fresh proceeding without joining the
Chavans and without giving them any notice whatsoever. This is
clearly an attempt to overreach the Court. The fact that there is
another Petition pending is noted and the two are clubbed together,
but certainly on 7th August 2023 the Chavans do not seem have
been represented or heard. Their appearance is not shown, and no
submission is noted on their behalf.

6. Mr Warunjikar who appears for the Chavans points out that

Ashok Jain has filed proceedings in the City Civil Court in which
there is no relief. An appeal from order has been filed but again with
no interim protection. Now there is this order of no coercive action
until the next date, and it is on this order that Ashok Jain proposes
to ride almost indefinitely.

7. We exercise our discretion and we direct that Ashok Jain must

add the Chavans as Respondents to his Petition. There is no
question of us directing that Ashok Jain be joined as a Respondent
to the Chavans’ Petition because that is a matter that stands
concluded by the 13th June 2023 order. That was precisely the relief
that Ashok Jain sought but failed to get.

8. We should have imagined that the joinder of the Chavans

would have been inevitable without waiting for an order of the

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Court. Only because this was not done, there is this order of status
quo or of no coercive action that has continued until today.

9. We are not passing any mandatory direction or injunction

against anyone to take any particular action one way or the other.
But we will not continue an order obtained in such circumstances of
no coercive action.

10. Mr Purohit for Ashok Jain points out inter alia from a sketch
at page 148 of the Petition that the MCGM has demolished the
structures that according to it are illegal and shown as Units Nos. 6,
7, 8, 9 and 10 on the plot in question. If that be so, then there is no
question of “coercive action” by the MCGM in respect of Units
Nos. 2, 3, 4 and 5 and that entire application on 7th August 2023
was unnecessary.

11. Mr Purohit says that the Chavans are “pressing for

demolition”. It is not the Chavans who control and manage the
affairs of the MCGM. They may be pressing for very many things,
but we have not the slightest doubt that the MCGM will function
strictly in accordance with law.

12. For this multitude of reasons, we do not continue the order of

‘no coercive action’. There is no coercive action threatened or
imminent by the public authority to whom the Ashok Jain Writ
Petition is directed, viz., the MCGM. If the ‘coercive action’
apprehended is by the Chavans, then that is the subject of a civil
dispute, not within our writ jurisdiction.

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13. The amendment joining the Chavans as Respondents Nos. 4

and 5 to the Ashok Jain Petition is to be carried out by day after
tomorrow without need of reverification. We will take up both
Petitions together on 30th August 2023.

14. By the next date, the MCGM will give us a status report in
regard to the remaining structures in relation to the sketch plan at
page 148 and the status of the demolitions of all structures said to be
unauthorised. That Affidavit is to be filed and served without fail by
23rd August 2023.

15. List the matter on 30th August 2023.

(Kamal Khata, J) (G. S. Patel, J)

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