Gujarat High Court
Bhupendrasinh Vechatbhai Khant vs Vikramsinh Ramsinh Dindor on 1 May, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/460/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 460 of 2018
In
CIVIL APPLICATION NO.1 OF 2018
In
SPECIAL CIVIL APPLICATION NO. 3239 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHUPENDRASINH VECHATBHAI KHANT
Versus
VIKRAMSINH RAMSINH DINDOR
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Appearance:
MR PS CHAMPANERI(214) for the PETITIONER(s) No. 1
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MS MANISHA
LAVKUMAR, GOVERNMENT PLEADER WITH MR K.M. ANTANI,
ASSISTANT GOVERNMENT PLEADER for the RESPONDENT(s) No.
2,3,4,5,6,7
MR DIPAN DESAI(2481) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/05/2018
Page 1 of 23
C/LPA/460/2018 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The present appeal is filed under Clause15 of the Letters Patent against an order dated 10.04.2018, passed by the learned Single Judge in Civil Application No.1 of 2018 in Special Civil Application No.3239 of 2018 by which the learned Single Judge has allowed the application filed by present respondent No.1 for joining as party respondent in the main petition.
2. Heard learned advocate Mr.P.S. Champaneri for the appellant, learned advocate Mr.Dipan Desai for respondent No.1 and learned Additional Advocate General Mr.P.K. Jani for the respondent authorities.
3. The present appellant, who is the original petitioner, has filed Special Civil Application No.3239 of 2018 in which the appellant petitioner has challenged the order of cancellation of Caste Certificate issued by the competent authority in his favour. In the said petition, the petitioner has not joined present respondent No.1 as party respondent Page 2 of 23 C/LPA/460/2018 CAV JUDGMENT and, therefore, the present respondent No.1 filed Civil Application for joining him as party respondent in the main petition. The learned Single Judge has allowed the said application and, therefore, being aggrieved and dissatisfied with the said order dated 10.04.2018 passed by the learned Single Judge, the appellant - petitioner has preferred the present appeal.
4. Learned advocate Mr.P.S. Champaneri for the appellant - petitioner has mainly submitted that present respondent No.1 - applicant contested the election of the Legislative Assembly Seat of Morva (Hadaf). In the said election, the appellant has been elected. Instead of challenging the election of the appellant, present respondent No.1 applicant submitted representation before the respondent authorities for cancellation of the Caste Certificate of the appellant on the ground that the said certificate is false and in fact, the appellant does not belong to Scheduled Tribe category. The respondent authorities cancelled the Caste Certificate issued in favour of the appellant. It is Page 3 of 23 C/LPA/460/2018 CAV JUDGMENT contended that respondent No.1 applicant is not necessary or property party to the proceedings and he has not suffered any legal injury. Therefore, the learned Single Judge ought not to have joined him as party respondent in the petition.
4.1 Learned advocate Mr.Champaneri would submit that if respondent No.1 - applicant is aggrieved by the result of the election of the Legislative Assembly, he could have filed Election Petition under Section 100 of the Representation of Peoples Act, 1950 before this Court. Such Election Petition is required to be filed within a period of fortyfive days from the date of declaration of the result. However, respondent No.1 - applicant has failed to file such Election Petition challenging the election of the appellant, instead he filed the application for joining party in the petition filed by the appellant. However, the learned Single Judge has failed to consider the aforesaid important aspect. 4.2 Learned advocate Mr.Champaneri further submits that the applicant has not suffered any legal injury Page 4 of 23 C/LPA/460/2018 CAV JUDGMENT and, therefore, he cannot be said to be an aggrieved person. He, therefore, cannot claim that he may be joined as party in the petition filed by the present appellant.
4.3 Respondent No.1 applicant has not participated in the inquiry held against the appellant for cancellation of the Caste Certificate nor he was a party before the respondent authority-committee. He was not heard and, therefore, when the appellant- petitioner has challenged the order passed by the respondent authority-committee, respondent No.1- applicant cannot be considered as necessary or proper party in the proceedings filed by the appellant - petitioner.
4.4 Learned advocate for the appellant contended that it is well accepted principle of dominus litis that the person has right to choose whom he should arraign as party and, therefore, he cannot be asked to join a person as party, who is not an aggrieved person. He submitted that the learned Single Judge has committed an error while allowing the application Page 5 of 23 C/LPA/460/2018 CAV JUDGMENT of present respondent No.1. He, therefore, urged that the order passed by the learned Single Judge be set aside.
4.5 Learned advocate Mr.Champaneri for the appellant has placed reliance upon the following decisions:
(i) Kanaklata Das and others vs. Naba Kumar Das and others reported in (2018) 2 SCC 352
(ii) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others reported in (2013) 4 SCC 465
5. On the other hand, learned advocate Mr.Dipan Desai appearing for respondent No.1 - applicant has supported the reasoning recorded by the learned Single Judge and contended that in the memo of petition, the appellant - petitioner has alleged malafide against respondent No.1 - applicant. Thus, though there are specific allegations against respondent No.1 - applicant, he was not joined as party respondent in the said petition. It is contended that initially the appellant - petitioner Page 6 of 23 C/LPA/460/2018 CAV JUDGMENT preferred Special Civil Application No.1337 of 2018 challenging the order of the respondent authority - committee cancelling the Caste Certificate of the petitioner. In the said petition, respondent No.1 herein was joined as party respondent. After the matter was remanded back to the respondent authority
- committee by this Court, fresh order came to be passed by the respondent authority - committee. During the course of such inquiry, the petitioner made representation which was considered by the said committee.
5.1 Learned advocate Mr.Desai would further submit that respondent No.1-applicant contested the election of Legislative Assembly against the appellant - petitioner. At the time of scrutiny of the nomination form, respondent No.1applicant raised an objection before the Returning Officer and, thereafter, he has made the complaint before the Mamlatdar, Morva as well as District Collector, Panchmahal. However, the Returning Officer cannot decide the validity of the Caste Certificate and, therefore, the objection of respondent No.1 - applicant was not considered by the Page 7 of 23 C/LPA/460/2018 CAV JUDGMENT Returning Officer. However, on the basis of the representation made by respondent No.1-applicant, after making necessary inquiry, the respondent authority - committee passed an order cancelling the Caste Certificate of the petitioner and, therefore, respondent No.1 - applicant is a necessary and/or proper party to the proceedings. In fact, respondent No.1 - applicant belongs to Scheduled Tribe and, therefore, when the person does not belong to Scheduled Tribe category and has contested the election on the basis of the false certificate, right of the applicant to contest the election on the reserved seat has been affected and, therefore, respondent No.1-applicant is an aggrieved person. 5.2 Learned advocate Mr.Desai has, therefore, urged that when the learned Single Judge has not committed any error while allowing the application filed by respondent No.1, this Court may not entertain this appeal.
5.3 In support of the aforesaid contentions, learned advocate Mr.Desai has placed reliance upon the Page 8 of 23 C/LPA/460/2018 CAV JUDGMENT decision rendered by the Division Bench of this Court in the case of Kuvrabhai Bharabhai Bharvad Versus State of Gujarat in Letters Patent Appeal No.644 of 2016.
6. Learned Additional Advocate General Mr.P.K. Jani appearing for the respondent authorities has also supported the reasoning recorded by the learned Single Judge and contended that as respondent No.1 - applicant is a necessary and proper party to the proceedings, he can be said to be an aggrieved person as he has suffered legal injury, the learned Single Judge has rightly joined him as party respondent in the petition filed by the present appellant. Therefore, this Court may not interfere with the order passed by the learned Single Judge.
7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it transpires that the appellant and respondent No.1 herein contested the election of the Legislative Assembly of Morva (Hadaf) constituency. The said seat is reserved for Scheduled Tribe Page 9 of 23 C/LPA/460/2018 CAV JUDGMENT candidate. In the said election, the appellant was declared elected. At the time of scrutiny of the nomination form, respondent No.1 took objection before the Returning Officer about the validity of the Caste Certificate of the appellant - petitioner. However, the Returning Officer cannot decide the validity of the Caste Certificate and, therefore, at the relevant time, the objection raised by respondent No.1 - applicant was not considered by the Returning Officer. Respondent No.1, therefore, made representation before the respondent authority- committee alleging that the Caste Certificate issued in favour of the appellant - petitioner is false and the appellant does not belong to the Scheduled Tribe category. Similar type of representations were also received by the respondent authority in past. Thus, on the basis of the representation made by respondent No.1 herein, inquiry was conducted by the respondent authority - committee. During the course of such inquiry, representation of respondent No.1 was considered and name of respondent No.1 is referred at various places in the order passed by the respondent authority committee. The said order is under Page 10 of 23 C/LPA/460/2018 CAV JUDGMENT challenge before the learned Single Judge by the petitioner. It is further revealed that in the memo of the petition, at Page10, the appellant- petitioner has alleged malafide against respondent No.1-applicant. In spite of that, respondent No.1- applicant was not joined as party respondent in the petition. It is further revealed that the appellant- petitioner earlier filed Special Civil Application No.1337 of 2018 before this Court challenging the order passed by the respondent authority - committee. In the said petition, respondent No.1 - applicant was joined as party respondent. The said petition was allowed by this Court and the matter was remanded back to the respondent authority for considering the matter afresh. Respondent No.1 thereafter also submitted representation before the respondent authority - committee and after considering the material, the respondent authority - committee has passed an order which is challenged by the petitioner before this Court wherein respondent No.1 - applicant was not joined as party respondent.
8. In the facts and circumstances of the case, the Page 11 of 23 C/LPA/460/2018 CAV JUDGMENT question which is required to be considered is whether respondent No.1 has suffered any legal injury and whether he can be said to be an aggrieved person or not. Further, whether respondent No.1 - applicant can be said to be a necessary and/or proper party to the proceedings or not.
9. In the aforesaid facts and circumstances of the present case as discussed hereinabove, it has emerged that respondent No.1 - applicant is a member of the Scheduled Tribe whereas it is alleged that the appellant - petitioner though not belongs to Scheduled Tribe category, on the basis of false Caste Certificate issued in his favour, contested the election of the Legislative Assembly. Thus, respondent No.1 raised the objection at the time of scrutiny of the nomination form before the Returning Officer. Such objection was not considered by the Returning Officer as he was not authorized to decide the validity of the Caste Certificate issued in favour of the appellant-petitioner. Thus, the genesis is the Caste Certificate on the basis of which the appellant - petitioner contested the election of the Page 12 of 23 C/LPA/460/2018 CAV JUDGMENT Legislative Assembly on reserved seat. Respondent No.1 made representation before the respondent authority - committee alleging that the Caste Certificate issued in favour of the appellant - petitioner is false and he is not a member of Scheduled Tribe. During the course of inquiry, the respondent authority considered such representation as discussed hereinabove. It is well accepted principle that necessary party is one without whom no order can be made effectively and the proper party is one whose presence is necessary for complete and final decision on the issue involved. In the facts and circumstances of the case as discussed hereinabove, we are of the view that respondent No.1
- applicant though may not be strictly termed as necessary party but he would be covered as proper party.
10. Another question is whether the applicant can be said to be an 'aggrieved parson' or not. It is well accepted that the person aggrieved is one who has suffered legal injury, meaning thereby, the prejudice caused to the legal right. In the present case as discussed hereinabove, respondent No.1 - applicant Page 13 of 23 C/LPA/460/2018 CAV JUDGMENT who is a defeated candidate, has a legal injury when the person like the appellant - petitioner, who is alleged to be not belong to a member of Scheduled Tribe - Reserved Category, is permitted to contest the election on the reserved seat meant for the members of the Scheduled Tribe. The learned Single Judge has rightly observed that in the democratic set up, in order to promote the proper representation of the different section of community or the people, such mechanism has been evolved. If that has not been considered, the person, who belongs to such category, would feel that he has been deprived of his right to represent the community. Thus, any person having sufficient interest can make an application when the injury or the prejudice is caused to him by violation of some of the provisions of the Constitution or the law.
11. The contention raised by the learned advocate Mr.Champaneri with regard to concept of dominus litis in the facts and circumstances of the present case is misconceived. In the facts and circumstances of the present case as discussed hereinabove, when Page 14 of 23 C/LPA/460/2018 CAV JUDGMENT respondent No.1 - applicant is a proper party to the proceedings, the learned Single Judge has not committed any error while allowing the application filed by respondent No.1 and permitting him to be joined as party respondent in the petition filed by the appellant.
12. In the case of Kanaklata Das and others vs. Naba Kumar Das and others (supra), the Honourable Supreme Court has observed in Paragraph11.4 as under:
"11.4 Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the coplaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit."Page 15 of 23 C/LPA/460/2018 CAV JUDGMENT
13. In the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others (supra), the Honourable Supreme Court has observed in Paragraphs 9, 10 and 18 as under:
Person aggrieved "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The Page 16 of 23 C/LPA/460/2018 CAV JUDGMENT existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right.
In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide :
State of Orissa v. Madan Gopal Rungta, Saghir Ahmad & Anr. v. State of U.P., Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors.; Rajendra Singh v. State of Madhya Pradesh; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors.
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v.Page 17 of 23 C/LPA/460/2018 CAV JUDGMENT
Home Insurance Co. of New York and State of Rajasthan & Ors. v. Union of India).
xxx xxx xxx Locus standi of respondent no.5 :
18. As Respondent no.5 does not belong to the Scheduled Tribes category, the garb adopted by him, of serving the cause of Scheduled Tribes candidates who might have been deprived of their legitimate right to be considered for the post, must be considered by this Court in order to determine whether respondent no. 5, is in fact, in a legitimate position to lay any claim before any forum, whatsoever."
14. We cannot dispute the proposition of law laid down by the Honourable Supreme Court in the aforesaid decisions wherein the Honourable Supreme Court has discussed about the concept of dominus litis as well as discussed about the "legal right" and "person aggrieved". However, in the facts and circumstances of the present case as discussed hereinabove, when respondent No.1 - applicant is an aggrieved person and is a proper party to the proceedings, the learned Single Judge has not committed any error while allowing the application filed by respondent No.1 for Page 18 of 23 C/LPA/460/2018 CAV JUDGMENT being joined as party respondent No.1.
15. In the case of Kuvrabhai Bharabhai Bharvad Versus State of Gujarat (supra), the Division Bench of this Court considered the abovereferred decisions rendered by the Honourable Supreme Court and observed in Paragraphs10, 11 and 14 as under:
"10. In the case of Mumbai International Airport Private Limited v/s. Regency Convention Centre and Hotels Private Limited and Others reported in (2010) 7 SCC 417, the Hon'ble Apex Court has held in paragraph nos.15 and 25 as under: "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 Page 19 of 23 C/LPA/460/2018 CAV JUDGMENT 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."
"25. In other words, the court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party."
11. In the case of State of Asasm v/s. Union of India and Others reported in 2011 AIR SCW 3724, the Hon'ble Apex Court has observed in paragraph no.14 as under :
"14. We respectfully agree with the observations made by this Court in Udit Narain's case (supra) and adopt the same. We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose Page 20 of 23 C/LPA/460/2018 CAV JUDGMENT presence is necessary for a complete and final decision of the question involved in the proceeding."
12. xxx xxx xxx
13. xxx xxx xxx
14. Keeping in mind the law laid down by the Hon'ble Apex Court in various decisions, if the present case is examined, we are of the opinion that respondent authority has exercised power conferred on it under section 84(5) of the Act, 1961 on an application given by the appellant. The appellant has paid the audit fees of Rs.52,000/and as a member of respondent no.4, the appellant is interested that proper reaudit is carried out by the Special Auditor. There are allegations leveled against the appellant by name in the petition as observed hereinabove without joining him as party. Though no relief is prayed against the appellant in the petition, order appointing Special Auditor is under challenge who has been appointed on an application given by the appellant, we are of the view that in the facts and circumstances of the case, present appellant is necessary and proper party to the proceedings. We have gone through reasoning given by the learned Single Judge. However, in view of aforesaid discussion, we are of the opinion that the appellant is required to be joined as party respondent in Page 21 of 23 C/LPA/460/2018 CAV JUDGMENT Special Civil Application No.268 of 2015."
16. Thus, from the aforesaid decisions rendered by the Honourable Supreme Court as well as this Court, it can be said that necessary party is one without whom no order can be made effectively and 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 of the question involved in the present proceedings. Keeping in view the said proposition of law, if the facts discussed hereinabove are examined, we are of the view that the presence of respondent No.1 - applicant is necessary for a complete and final decision of the question involved in the petition pending before the learned Single Judge. Thus, respondent No.1 - applicant is a proper party to the proceedings and, therefore, he is required to be joined as party respondent in the petition.
17. In view of the foregoing discussion, we are of the view that the learned Single Judge has not committed any error while allowing the application filed by respondent No.1. The present appeal is Page 22 of 23 C/LPA/460/2018 CAV JUDGMENT devoid of merit and deserves to be dismissed. Accordingly, the appeal is dismissed. Consequently, the Civil Application does not survive and is disposed of, accordingly.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) PIYUSH Page 23 of 23