1. Rule.
Mr. Japan V.Dave, learned advocate waives service of notice of Rule for respondents Nos.1 to 3, Mr.Hemang Shah, learned advocate waives service of notice of Rule for respondent No.4, Ms.Anuja Nanavati, learned advocate waives service of notice of Rule for respondent No.5 and Mr.Pranav S.Dave, learned Assistant Government Pleader waives service of notice of Rule for respondent No.6.
2. This application has been filed by the applicant with a prayer to permit him to be joined as party respondent No.4 to the petition.
3. The brief facts, as are relevant for the decision of the application, are that respondents Nos.1 to 3 have preferred Special Civil Application 775 of 2011 which is pending before this court against the present respondents Nos.4 to 6, with the following prayers:
"(a) This Hon'ble Court may be pleased to admit and allow this petition;
(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondent No.2 -Borsad Nagar Palika to execute register sale deed in respect of plot no.138 in favour of the petitioner no.1, plot no.63 in favour of petitioner no.2 and plot no.98 in favour of petitioner no.3, as they have offered highest price and they were allotted the said plot after the public auction held on 21.04.99.
(c) This Hon'ble court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the order dated 13.02.02 passed by the Collector, Anand in Appeal No.19 of 2000 and further be pleased to quash and set aside the communication dated 10.03.08 issued by Borsad Nagar Palika expressing inability in executing sale deed.
(d) During the pendency and final disposal of this petition, to direct the respondents not to initiate any new proceedings for selling out the plots which were subject matter of the public auction held on 21.04.99, in pursuance of public advertisement dated 09.04.99.
(e) Grant such other and further relief as thought fit in the interest of justice."
4. The original petitioners had taken part in an auction of reserved plots, pursuant to advertisement dated 9-4-99, published by respondent No.4 (Borsad Municipality). The original petitioners deposited Rs.50,000,/- each with the said Municipality on 21.4.2000 and,according to them, after offering the highest bids, they were allotted the respective plots by the Borsad Municipality. On 23.10.2000, Resolution No.72 came to be passed in the General Board Meeting of Borsad Municipality, wherein it was resolved to return back the amount paid by the bidders in the auction. It was also resolved to allot the plots to poor and middle-class persons, by carving out smaller plots. On 11.12.2000, the Chief Officer, Borsad Municipality, passed Resolution No.99 in the General Board Meeting, cancelling the Resolution No.72, on the ground that no economic loss would be caused to the Municipality. Resolution No.72 was cancelled and it was directed that Sale Deeds be executed in favour of the persons who had been allotted plots, pursuant to the public auction. The present applicant had preferred an appeal, being Appeal No.19 of 2000, before the Collector, Anand challenging several resolutions of Borsad Municipality, including Resolution No.99. On 13-2-2002, the appeal came to be allowed by the Collector. It is this order of the Collector that has been challenged by the original petitioners in the petition.
5. Insofar as the applicant is concerned, it has been averred in paragraph 8 of the present application that he is a public-spirited citizen of Borsad. On coming to know about the aforesaid Resolutions he had resorted to the remedy of filing an appeal against them before the Collector. According to the applicant, the Municipality, which is controlled and managed by political parties, may not protect the interest of the general public at large, and may protect only a few interested persons, therefore, he preferred the appeal. It is stated in the application that the applicant is concerned that respondents Nos.1 to 3 (original petitioners) would succeed in taking away the plots thorough the auction, at throw-away prices. Hence, he had filed the appeal on which the Collector has passed an order on 13-2-2002, that is impugned in the petition. It is further stated in the application, in paragraph 13, that the applicant is not interested in purchasing any of the plots in question, nor is he interested in the affairs of the opponent Municipality. However, being a tax-payer of the Municipality and a public-spirited person of Borsad, he is interested to ensure that no loss is caused to the public exchequer on account of any illegality committed by a public body or an individual, or on account of failure or deliberate inaction on the part of the statutory body.
6. On the above grounds, and as the order impugned in the petition has been passed by the Collector at the behest of the applicant, the applicant has prayed to be joined as party respondent in the petition.
7. Mr.A.B.Munshi, learned advocate for the applicant, has submitted that the applicant is not only a necessary, but is a proper party, to the proceedings, as it was at his behest that the Collector has passed the impugned order. By impleading the applicant as party respondent to the petition, no prejudice is likely to be caused to the other side, whereas the applicant would be able to assist the court in rendering justice to the parties. It is further submitted that though the applicant does not have any interest in the plots in question, he has acted in the public interest by challenging the Resolutions of the Borsad Municipality before the Collector, as the said Municipality may not contest the matter properly. The interest of the applicant is only to ensure that the plots in question are not given away at throw-away prices. As the applicant was party to the proceedings before the Collector, he deserves to be impleaded as party respondent in the present proceedings, as well.
8. The learned counsel for respondents Nos.4,5 and 6 have not opposed the prayers made in the application.
9. The application has been strongly resisted by Mr.S.B.Vakil, learned Senior Advocate with Mr.Japan V.Dave, learned advocate for respondents Nos.1 to 3 (original petitioners). The submissions advanced by the learned Senior Counsel are briefly summarised as below:
(a) That the applicant has nothing to do with the subject matter of the petition and has no interest in the plots for which the petitioners are the highest bidders.
(b) The applicant is a third party and has challenged the Resolutions passed by the Municipality, before the Collector in the public interest.
(c) The present litigation is regarding property and the applicant has no direct or legal interest in the property in question.
(d) The applicant is neither a necessary nor a proper party, and the original petitioners have not sought any relief against him in the petition. Just because the Collector had accepted the challenge to the Resolution at the behest of the applicant, would not make the applicant a proper or necessary party, as it is the legal right and interest in the property in question that has to be seen,which the applicant does not possess.
(e) The applicant has not given a bid in the auction and, on his own say, has nothing to do with the plots that were put to auction, therefore, the petitioners are not bound to implead him as party in the petition as the decision of the petition will not personally affect him in any manner.
(f) The conduct of the applicant further disentitles him to the relief claimed in the application. The applicant had filed an unconditional withdrawal pursis before the Collector, and once such a Pursis is filed the Collector would have no jurisdiction to decide the appeal. It is not relevant whether the Collector accepts the withdrawal pursis, or not, as the applicant has expressed his desire to unconditionally withdraw the appeal. In such circumstances, the conduct of the applicant disentitles him for grant of the relief prayed for in the present application.
10. In support of his submissions, learned Senior Counsel has relied upon the following judgments:
(a) Secretary to Govt. of Tamil Nadu v. C.Krishnan, 1999 (SCC (L&S) 644
(b) Ramesh H.Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524
(c) Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd., (2010) 7 SCC 417
11. On the strength of the above submissions, it is prayed that the application be rejected.
12. Having heard the learned counsel for the respective parties and considering the factual background of the matter, it would be relevant to advert to the provisions of Order I, Rule 10(2) of the Civil Procedure Code,1908 ('the Code' for short), which read as under:-
"(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party,and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined,whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
13. From the above provision of law, it is evident that discretion is vested in the Court to add or strike out the names of parties to the proceedings at any stage. Any person, whose presence is necessary in order to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the proceedings can be joined, even in the absence of an application. What has to be seen by the Court is whether the presence of the party proposed to be joined is necessary to enable the Court to adjudicate upon the issues involved in the litigation, completely and effectively. Who can be considered to be a necessary party or a proper party, has been stated by the Supreme Court in Ramesh H.Kundanmal v. Municipal Corporation of Greater Bombay (Supra),in the following terms:
"6.
Sub-rule(2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.
7.
case really turns on the true construction of the rule in particular the meaning of the words "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit." The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
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14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:-
"The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."
(emphasis supplied)
14. Similar principles have been further enunciated by the Supreme Court in the case of Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd. (Supra), as below:
"13.
The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of the Code of Civil Procedure ('the Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"10.(2) Court may strike out or add parties:-
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15.A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.
The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance." (emphasis supplied)
15. The prayer for impleadment in the petition by the applicant may now be examined in light of the principles of law, laid down by the Apex Court, as quoted hereinabove.
16. In Ramesh H.Kundanmal v. Municipal Corporation of Greater Bombay (Supra), the Supreme Court has held that the person to be joined must be directly or legally interested in the action. If the litigation would lead to a result that would affect him legally by curtailing his legal rights then the Court may join him as party. In short, the person proposed to be joined as party must be directly interested in the subject matter of the dispute and affected by the decision that may be rendered thereupon. As stated by the Supreme Court, a person need not be joined only because he has an interest in the 'correct solution' of a question involved in the litigation.
17. Applying the above principles of law to the case of the applicant, it is seen that though the impugned order of the Collector has been passed in proceedings initiated by the applicant, by his own admission, the applicant does not have any legal right or interest in the plots for which the original petitioners are the highest biders, that are the subject matter of the Resolutions of the Borsad Municipality. The applicant appears to be motivated solely by public interest which is not a legally tenable ground for impleading him as party, as per the provisions of Order 1 Rule 10(2) of the Code. In such circumstances, it may not be germane to grant the prayers made in the application for impleading the applicant as party respondent to the petition. The original petitioners have not sought any relief against the applicant in the main petition, and to join him merely for the reason that he had initiated the earlier proceedings before the Collector, would only result in widening the issue that is required to be adjudicated and settled effectually and completely by the Court.
18. Looking to the fact that the Resolutions of the Borsad Municipality were under challenge before the Collector and the order of the Collector is impugned in the petition, the presence of the applicant in the petition is not required. As held by the Supreme Court in Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd. (Supra), the plaintiff, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. It cannot be said that no effective order can be passed upon the challenge made by the petitioners before this Court in the absence of the applicant. The Collector, who is the author of the impugned order, and the Borsad Municipality, whose Resolutions had been challenged before the Collector, are both parties to the petition. There is no reason for this Court to assume, as suggested by the applicant, that the Borsad Municipality would not defend the matter properly, and only the applicant can ensure that the proceedings will be conducted in a proper manner. This Court cannot agree with such a sweeping statement. The applicant, as a public spirited person, may have succeeded in the proceedings initiated before the Collector. Before this Court, the order of the Collector has been challenged on various legal grounds raised in the petition, for the complete and effective decision regarding which, the Court would not require the impleadment of the applicant. Admittedly, as the applicant has no interest in the plots in question, he would not be affected by any order passed by this Court. Conclusively, it can be said that the applicant is neither a necessary,nor a proper party to the petition.
19. For the aforestated reasons, and keeping in mind the judicial pronouncements referred to hereinabove, as the applicant, being a public-spirited person, has no legal right or interest in the plots in question, his presence is not necessary to completely and effectively adjudicate upon the issues raised in the petition. As the applicant would not be personally affected by any decision rendered by the Court in the petition, the prayer for impleadment made by the applicant, cannot be accepted.
20. In view of the above conclusions arrived at by this Court, it is not found necessary to go into the other submissions advanced by the learned Senior Counsel for the original petitioners.
21. Accordingly, the application is rejected. Rule is discharged.
(Smt.Abhilasha Kumari,J) arg Top