1. The present petition has been preferred under Article 226 of the Constitution of India, with the following prayers:
"(A) Your Honour may be pleased to admit this Petition;
(B) Your Honour may be pleased to issue a Writ of Mandamus or any other Appropriate Writ or order or directions to the Respondent no.1 as to why any action is not taken in respect to the List of owners of residential units containing illegal constructions in the Respondent No.2 society produced as ANNEXURE :B (Collectively) with this Petition which contain illegal/ unlawful constructions.
Your Honour may be pleased to issue a Writ of Mandamus or any other Appropriate Writ or order or directions to the Respondent no.1 to remove illegal constructions given vide ANNEXURE : B (Collectively) to this petition (including any other found to have been made in the Respondent No.1 society).
(D)Your Honour may be pleased to grant any other relief as is deemed fit and necessary in the interest of justice."
2. The petitioner is a resident of Vimalnath Co-operative Housing Society Ltd (respondent No.2). As stated in the petition, the property was purchased by the petitioner vide Registered Sale Deed dated 16-2-2010. The grievance of the petitioner, as expressed in the petition, is that he had sent a letter dated 20-5-2011 and application dated 26-4-2011, along with a list of documents and photographs to the Commissioner, Ahmedabad Municipal Corporation (respondent No.1) regarding details of alleged illegal and unauthorized constructions made by 45 to 50 members of the respondent No.2-Society. According to the petitioner, respondent No.1 has not taken any action in respect of the contents of the letter dated 20-5-2011. It transpires from the material on record that earlier, the petitioner had preferred a petition being Special Civil Application No.10835 of 2011 that was permitted to be withdrawn by order dated 17-8-2011, upon the request of the petitioner to permit withdrawal with a view to approaching the appropriate authority for redressal of his grievances. Thereafter, the petitioner has filed the present petition.
3. Ms.Lopa M.Bhatt, learned advocate for the petitioner, submits that pursuant to withdrawal of the earlier petition, the petitioner has made a representation dated 2-9-2011 to respondent No.1. However,no action has been taken by respondent No.1 regarding the representation of the petitioner, therefore, the petitioner is constrained to approach this Court by filing the present petition.
4. Pursuance to issuance of notice, respondent No.2 filed an affidavit-in-reply. A preliminary objection has been taken that the petition suffers from the vice of non-joinder of necessary parties as the petitioner has sought relief against members of respondent No.2 Society, without joining them as party respondents to the present petition.
5. Mr.V.M.Pancholi, learned advocate for respondent No.2, submits that the petition has been filed with a malafide intention, as respondent No.2 Society has filed Lavad Suit No.209 of 2010 on 15-4-2011 against the petitioner before the Board of Nominees, Ahmedabad with a prayer to prevent him from carrying out unauthorised construction. It is further submitted that the Board of Nominees has passed an order dated 25-4-2011 and granted interim injunction in favour of respondent No.2, against which the petitioner has preferred a Revision Application before the Co-operative Tribunal. It is prayed by Mr.Pancholi that the petition be rejected
6. Though respondent No.1 is served, none has appeared on behalf of the said respondent today and no affidavit in reply has been filed on its behalf.
7. The following salient aspects emerge from the record:
(a) The petitioner had preferred Special Civil Application No.10835 of 2011 which was permitted to be withdrawn vide order dated 17-8-2011 with a view to approach the appropriate authority.
(b) No liberty has been reserved by the Court in favour of the petitioner so as to entitle him to prefer the present petition.
(c) The record of Special Civil Application No.10835 of 2011 has been summoned by the Court and it is noticed that the subject matter of the said petition is the same as that of the present petition,namely, alleged illegal construction carried out by members of the Society.
(d) By making the prayer at paragraph 16(B), a direction is sought to remove the allegedly illegal constructions carried out by owners of residential units, as per the list given by the petitioner.
(e) Admittedly, the owners of the residential units against whom action is sought to be taken and whose allegedly illegal constructions are sought to be removed, have not been impleaded as party respondents to the petition.
8. When the petition was taken up for hearing in the first Session, the learned advocate for the petitioner was requested to take instructions from the petitioner,as to whether the petitioner was desirous of impleading the persons who would be directly affected by the prayers made in the petition, as party respondents.
9. When petition is taken up again in the second Session, the learned advocate for the petitioner states, upon instructions from the petitioner who is present in the court, that the petitioner is not desirous of impleading those members of respondent No.2 Society who would be directly affected by the prayers made in the petition and whose allegedly illegal constructions are sought to be removed.
10. It is a settled principle of law that any party who would be directly affected by the prayers made in the petition ought to be impleaded as party respondent, and no orders ought to be passed that would directly and adversely affect any person, behind his back.
11. The preliminary objection raised by the learned advocate for respondent No.2, to the effect that the petition suffers from non-joinder of necessary parties, carries weight. As the persons who would be immediately and adversely affected by the prayers made in the petition have not been joined as party respondents and the petitioner has flatly refused to join them, the petition cannot be entertained in its present form.
12. The petition suffers from the vice of non-joinder of necessary parties. It is, therefore, rejected. Notice is discharged. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg Top