' MUHAMMAD MUNIR KHAN, 1.-This Intra-Court Appeal No, 361/1980 arises from the judgment of a learned Single Judge, whereby, he, on 16th April. 1980 dismissed the Writ Petition NO. 2024/79 filed by Muhammad Yusaf and 104 others petitioners seeking declaration to the effect that the order dated 25th January, 1979 passed by respondent No, 1 was without lawful authority and of no legal effect.
2. The facts leading up to this appeal, in brief are that in the year 1974, the Government of Punjab decided to establish Feeder Market under. Rule 63 of Agricultural Produce Markets Rules, 1940 on the following conditions :- (1)The owner of the land, transfers land in the name of the Market Committee and an agreement deed be made between the land owner and the Market Committee, if not already done so ; (2)land owners will get 1/3rd of the amount received after the auction of the commercial plots ; (3)the Market Committee may construct its office on two plots and shall be responsible for the construction and maintenance of roads, water supply system, street light, sewerage, public paths, public latrines and general cleanliness of the Market ; (4)The Deputy Commissioner will auction the commercial plots within a period of six months from the date of issuance of those orders.
' The Director General, Agriculture (Field), Punjab, the Director of Agriculture (E & M) and all Deputy Commissioners in the Punjab were asked for proposal for the establishment of Feeder Markets. '
3. In pursuance of that, a notification No, S.
0. (S and M)-X-53/ 72 (Annex : 'A') published in the Punjab Gazette, dated 20th November, 1975, reads as follows (1)No person or party shall establish a Market within the Notified Market Area of any Market Committee unless the site has been approved by the Government.
(2) A person or party intending to establish a market shall apply for sanction to the Government and the market shall be established with the previous sanction of the Government.
(3) The Government may reject a site and the orders passed by the Government in this respect shall be final. Consequently, the writ petitioners Nos. 1 to 105 applied for the sanetion to the establishment of Feeder Market in Chauk Munda. They jointly purchased 8 acres of land in Chak No, 75/T. D. A. For Rs, 90,000 through registered sale-deed dated 9th February, 1976. The Government of the Punjab respondent No, 1 approved the site purchased by the writ petitioners on the following conditions :-
(I) the owner of the land transfers land in the name of the Market Committee and an agreement deed be made between the land owner and Market Committee, if not already done so ;
(2) the commission agents shall transfer two plots to the Market Committee for the establishment of its office and shall be responsible for the construction and maintenance of roads, water supply system, street light, sewerage, public paths, public latrines and general cleanliness of the Market.
' On 17th September, 1976, Director, Agriculture directed the Administrator, Market Committee to enter into an agreement with the dealers and implement the instructions of the Government regarding construction of a Feeder Market on the site approved by the Government. On 4th January, 1977 the Secretary, Market Committee, vide copy Annexure K/I asked the President of Commission Agents Association{{URDU TEXT}}Chauk Munda to complete the transfer of the land in the name of the Market Committee and produce the Power of Attorney on behalf of 105 writ petitioners but the agreement could not be performed on account of some stay order. Issued by a civil Court. Thereafter, it so happened that the Government through notification dated 25th January, 1979 revised the approval in favour of the petitioners, cancelled the same and approved the establishment of Feeder Market on the land owned by Abdul Aziz. Aggrieved by this notification Muhammad Yusaf and 104 others filed writ petition No, 2024/79 which was dismissed on 16th April, 1980. Hence this Intra-Court Appeal.
4. The above fact make it crystal clear that the interest of the writ petitioners Nos. 1 to 105 in the establishment of Feeder Market is not divisible. They jointly applied for the approval of the establishment of Feeder Market. They jointly purchased 64 Kanals 'for Rs, 90,000, they jointly offered to transfer two plots earmarked for shops for the construction of the office of he Market Committee and that the impugned order was also joint as against 105 writ petitioners.
5. Mr. Riaz Anwar, learned counsel for the respondents has raised a preliminary objection as to the maintainability and competency of the IntraCourt Appeal. He has pointed out that the writ petition No, 2024/79 was filed by Muhammad Yusaf and 104 others against the four respondents herein which was dismissed vide impugned order dated 16th April, 1980, whereas the. Present Intra-Court Appeal has been filed by 68 persons out of 105 writ petitioners without impleading the remaining 37 writ petitioner as respondents or appellants. He further submits' that 37 writ petitioner having a joint interest in the matter were the necessary party.
6. The learned counsel for 68 appellants herein had frankly admitted that 37 twit petitioners not impleaded in this appeal had joint interest in the establishment of Feeder Market. He however, argues that the appeal of the 68 petitioners out of 105 writ petitioners is not bad under Order XLI, rule 4, C. P. C. He has also relied upon Ayubur Rehman v. Syed Bashir Ali. Dr. Mazhar Hussain v. Mst.
Naseem Begum and others Muhammad Hussain v. Zafar All Khan and Kumar Datta v. Sita Nath Dutta.
7. After hearing the learned counsel for the parties and going through the case law cited by them we are inclined to accept the preliminary objection raised by Mr. Riaz Anwar learned counsel for the respondent for the reason that in the instant case the appellants have not impleaded the1 2 3 4 remaining 37 writ petitioners as a party. To our mind, they having a joint interest in the establishment of Feeder Market and having purchased 64 Kanals jointly for Rs, 90,000 and the approval of the Government begin a joint one, the 37 writ petitioners who have not been impleaded in the Intra-Court Appeal were the necessary party and at their back no effective judgment can be made. The omission to implead them as respondents, if they were not prepared to join the appellants, is a fatal blow to the structure of the present appeal. It is well established that non- impleadmeat of a necessary party renders appeal incompetent. It would certainly be a bad exercise of constitutional jurisdiction and discretion to consider merit of the case in absence of 37 writ petitioners, particularly when the impugned order was joint and indivisible against 105 writ petitioners.
8. As for arguments presented by the learned counsel for the appellants, there is no denying that under Order XLI, rule 4, C. P. C. Where there are more plaintiffs in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs, any one of the plaintiffs may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs as the case may be but this does not mean that he or they are exempted from impleading the other co-petitioners as respondents. We find that the writ petition was not filed in a representative capacity and so far no permission to file the appeal on behalf of the others has been obtained from the Court. The case law cited by the learned counsel for the appellants is not applicable to the facts and circumstances of the case.
9. For what has been stated above, we accept the preliminary objection and dismiss the appeal with no order as to costs. PLD 1962 Dacca 23 PLD 1962 Lah. 38 PLD 1962 Pesh. 199 PLD 1952 Dacca 357