Gujarat High Court
Prisha Overseas Enterprise Private ... vs Union Of India on 7 March, 2019
Author: Harsha Devani
Bench: Harsha Devani, Bhargav D. Karia
C/SCA/21004/2018 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 21004 of 2018
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SHREE KUTCH JILLA PANJARAPOLE GAUSHALA SANGATHAN Versus PRISHA OVERSEAS ENTERPRISE PRIVATE LIMITED THROUGH DIRECTOR PRASHANT ARVINDBHAI SHUKLA ========================================================== Appearance:
MR BJ TRIVEDI for the PETITIONER(s) No. MR JT TRIVEDI for the PETITIONER(s) No. MS JIGNASA B TRIVEDI for the PETITIONER(s) No. ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the RESPONDENT(s) No. MR NIRZAR S DESAI for the RESPONDENT(s) No. SAQUIB S ANSARI for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 07/03/2019 IA ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this application, the applicant Shree Kutch Jilla Panjarapole Gaushala Sangathan seeks to be permitted to be joined as intervener, that is, a respondent in Special Civil Application No.21004 of 2018.
2. The applicant is an organisation working for panjrapoles of Kutchh District. In the application it is averred that the applicant is having vital interest in the pending lis before this court and that the applicant is going to be affected, if the relief Page 1 of 10 C/SCA/21004/2018 IA ORDER prayed for by the petitioners in the special civil application are allowed/partly allowed in any manner by an order/judgment, which may be passed in the writ petition. It is also averred that the issue involved in the petition is of general importance and concerns public at large and the presence of the applicant will enable the court to decide the issue at hand in a better perspective as the applicant can throw some light on the issue at large in the interest of mute helpless animals. Averments are also made in the application to the effect that as per the roster during the relevant time when the matter was mentioned for urgent hearing before this court, this court was not having the business and had been assigned business comprising of the subject relating to Taxation, Commercial Court, etc. and hence, the present matter pertained to a business which was allotted to another bench of this court. It is further stated that if the roster effective from 16.01.2019 is seen, the business involved in the main special civil application pertains to one which is being handled by the Division Bench comprising of the Hon'ble Acting Chief Justice and therefore, the matter may be directed to be sent there for adjudication.
The other averments are on the merits of the writ petition.
3. Mr. B. J. Trivedi, learned advocate for the applicant, at the outset, has raised a preliminary objection to this court entertaining this application on the ground that the subject matter of the writ petition does not fall within the roster of this court, inasmuch as, this court has been assigned matters relating to 'import export policy' whereas in the present petition under the guise of seeking relief in respect of export of livestock, the petitioners have challenged the notification dated 14.12.2018 issued under the Gujarat Essential Page 2 of 10 C/SCA/21004/2018 IA ORDER Commodities Cattle (Control) Act, 2005 by the sixth respondent Agriculture, Farmer's Welfare and Cooperation Department, the communication dated 14.12.2018 issued by the respondent No.7 Directorate of Animal Husbandry to the Commissioner of Customs and the communication dated 14.12.2018 issued by the Under Secretary, Home Department to the Superintendent of Police, Kutch in respect of overloading of animals. It was submitted that none of these notifications/communications relate to the subject matter which is assigned to this court and, therefore, the matter being beyond the roster assigned to this court, this court may not decide the application and that the matter be placed before the registry to examine the contents of the writ petition and to place the matter before the appropriate court. It was further submitted that on earlier occasions, similar notifications were challenged by the petitioners before the learned Single Judge who was assigned such roster and, therefore also, the matter is required to be placed before the appropriate court.
3.1 On the merits of the application, as to why the applicant should be permitted to be joined as a party respondent, the learned advocate has submitted that there is a drought situation in Kutch and the applicant is running a panjrapole wherein animals are taken care of. It was submitted that in view of the drought situation if the petitioners are permitted to export goods, the livestock would be passing through Kutch, which would result in lack of fodder and water facility to the other animals in the district and would directly affect the applicant herein, and, therefore, the application is required to be allowed and the applicant is required to be permitted to be joined as a party respondent in the special civil application. It Page 3 of 10 C/SCA/21004/2018 IA ORDER was further submitted that if the court is inclined to reject the application, a copy of the order may be made available today itself as the applicant would like to challenge the same before the higher forum and in the meantime the writ petition may not be heard so as to enable the applicant to avail the remedy before the higher forum.
4. On the other hand, Mr. Mihir Joshi, Senior Advocate, learned counsel with Mr. M.T.M. Hakim and Mr. Saquib Ansari, learned advocates for the respondent No.1 (original petitioner) invited the attention of the court to the reliefs prayed for in the petition to point out that the principal relief prayed for is to permit export of livestock through Tuna Port of the Deendayal Port Trust. It was submitted that the thrust of the petition is that by one way or the other exports are being blocked. All the interdictions by way of the impugned notification and communications dated 14.12.2018 are with a view to prevent export of livestock through Tuna Port. The nucleus of the matter is the prohibition of exports contrary to the Import Export Policy. The Major relief claimed in the petition falls within the roster of this court and that the petition cannot be bifurcated into components. It was submitted that since the main relief prayed for is a matter relating to the Import Export Policy of the Central Government, the matter would fall within the roster of this court. It was submitted that the learned Single Judge would not be in a position to entertain a petition in respect of the Import Export Policy whereas the Division Bench can take care of the ancillary reliefs prayed for in the petition.
5. This court has considered the submissions advanced by Page 4 of 10 C/SCA/21004/2018 IA ORDER the learned advocates for the respective parties and perused the record of the case.
6. At the outset, the preliminary contention raised by the learned advocate for the applicant is required to be considered. In this regard, a perusal of the present roster of this court shows that this bench has been assigned the business of Taxation Matters relating to various Central and State Statutes and matters relating to Import Export Policy, etc. In terms of the reliefs prayed for in the petition, the petitioner has challenged notification dated 14.12.2018 issued under section 4(1)(b) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005; the communication dated 14.12.2018 of the Directorate of Animal Husbandry, Gujarat State addressed to the Commissioner of Customs on the subject: Export of Live animals from Tuna, Kandla Port, whereby he has informed him that for the reasons stated therein the Government of Gujarat has decided to withdraw the services provided for health check-up of live animals with immediate effect and has urged the Commissioner not to allow export of live animals from Tuna, Kandla Port of Gujarat till specified facility for Animal Quarantine and Certification is established by the concerned department of the Government of India; as well as the communication dated 14.12.2018 of the Home Department addressed to the District Superintendent of Police, Kutch (West), Gandhidham to ensure strict compliance of the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Transport of Animal Rules, 1976 and to set up check posts which are manned by the Police Officers/employees, representatives of the Animal Husbandry Department and representatives of the Jeevdaya organisations Page 5 of 10 C/SCA/21004/2018 IA ORDER who shall remain present all the time, etc. The petitioner also seeks a direction to the respondent authorities to permit export of livestock through Tuna Port of Deendayal Port Trust as was being permitted earlier, as well as a direction to the Home Department to ensure that the transporters of livestock are not harassed by so-called animal rights activists and officers of the Directorate of Animal Husbandry, etc.
7. On a perusal of the documents which are subject matter of challenge in the present petition, it can be seen that the communication dated 14.12.2018 of the Directorate of Animal Husbandry, Gujarat State addressed to the Commissioner of Customs and the communication dated 14.12.2018 issued by the Home Department, in effect and substance, have been issued in relation to export of live animals from Tuna, Kandla Ports. The only document which does not relate to import and export is the notification dated 14.12.2018 issued under the Gujarat Essential Commodities and Cattle (Control) Act, 2005, in respect of which the learned counsel for the petitioners has stated that they do not challenge the said notification to the extent the same seeks to regulate the movement of cattle into any drought affected area and that what the petitioners seek is that the same should be read to mean that it prevents bringing in cattle for the purpose of repose in the said District but does not prevent taking the livestock through Kutchh District for the purpose of export.
8. A perusal of the documents annexed along with the application and the notification and communications and the other relevant documents annexed along with the petition indicates that in effect and substance all the notifications have Page 6 of 10 C/SCA/21004/2018 IA ORDER been issued in connection with the export of livestock by the petitioners and similarly situated persons through Tuna Port. While the petitioner has challenged the notification and communications of the State authorities, the principal relief prayed for in the petition is seeking a direction to the respondents to permit the petitioner to export the livestock through Tuna Port of the Deendayal Port Trust as was permitted earlier by the concerned authorities, which does not come within the roster of a learned Single Judge as is sought to be contended by the learned advocate for the applicant. Insofar as the principal relief prayed for is concerned, the same relates to the Import Export Policy and clearly falls within the roster of this court. Insofar as the challenge to the notification and communications all dated 14th December, 2018 is concerned, the cause of action for challenging them is because the effect of such notification/communications is blocking export of livestock from Tuna Port. In the opinion of this court, in respect of the same cause of action, the petitioner cannot be called upon to file different writ petitions merely because the subject of Essential Commodities Act has been assigned to another Bench, despite the fact that such notification has the effect of blocking exports which are otherwise permissible under the Import Export Policy of the Central Government. In the opinion of this court, the principal relief claimed in the petition is required to be examined for the purpose of determining the appropriate Bench before which it should be placed in terms of the roster. In the present case, the principal relief relates to export of goods and the cause of action for filing the petition is the blockage of exports on account of issuance of the impugned notification/communications and hence, the registry has rightly placed the matter before this Page 7 of 10 C/SCA/21004/2018 IA ORDER bench. Under the circumstances, this court is not inclined to accept the contention raised on behalf of the applicant that the matter does not fall within the roster of this court and that the reliefs have been formulated in a particular manner so as to ensure that the matter is placed before a particular Bench. Significantly, previously also similar matters were placed before the Bench which was assigned matters relating to Import Export Policy, inasmuch as, export of livestock falls within the purview of the Import Export Policy of the Central Government. Besides, after issuance of notice by this court, the respondents have filed appearance and have sought adjournments from time to time, but at no point of time has any such objection been raised. Such contention has been raised for the first time by the applicant in an application for being impleaded as a party respondent. In view of the above discussion, the contention that this bench does not have the jurisdiction to deal with this application is hereby rejected.
9. The merits of the application may now be considered. In this regard it may be pertinent to note that in the writ petition the petitioners have challenged the notification/communications dated 14.12.2018 issued by the State authorities and seek a direction to the respondent authorities to permit the petitioner to export livestock through Tuna Port. Thus, the lis involved in the present petition is primarily between the petitioners and the respondent authorities. The controversy involved is not in the nature of public interest litigation as is sought to be suggested in the application. The applicant seeks to be joined as a party as it is an organisation working for Panjrapoles of Kutchh District and the notification issued under section 4(1)(b) of the Gujarat Page 8 of 10 C/SCA/21004/2018 IA ORDER Essential Commodities and Cattle (Control) Act has been issued for the benefit of cattle in drought affected areas. According to the applicant the issue involved in the present petition is of general importance and concerns public at large. In the opinion of this court, when the respondents are duly represented by the learned Additional Advocate General, the interest of beneficiaries of such notification is duly protected. Besides, what the petitioner seeks is permission to export livestock in terms of the Import Export Policy and since the impugned notification and communications have the consequence of blocking such exports the petitioner has challenged the same which cannot in any manner be said to be an issue of general importance concerning the public at large. It is purely a matter between the petitioner and similarly situated persons and the respondent authorities. In any case, merely because a particular notification has been challenged by a party, more particularly considering the nature of the impugned notification, every party who may indirectly benefit from such notification cannot be permitted to be joined as a respondent.
10. In the light of the above discussion, this court is of the view that the applicant is neither a necessary nor a proper party to the petition. No case is made out for impleading the applicant as a party respondent in the captioned writ petition. The application, therefore, fails and is accordingly, rejected.
11. At this stage, the learned advocate for the applicant states that the main matter may not be proceeded with, with a view to enable the applicant to approach the higher forum.
Page 9 of 10C/SCA/21004/2018 IA ORDER
12. In this matter notice was issued on 28th December, 2018 and was made returnable on 17th January, 2019. Thereafter at the request of the learned Assistant Government Pleader for the respondents, the matter was adjourned from time to time for completing the pleadings and also as the learned Additional Advocate General was to appear in the matter. In this case, as the exports by the petitioner are blocked on account of the impugned notification/communications, the matter was mentioned for urgent hearing from time to time. This application for joining as party has been filed on 26 th February, 2019. Under the circumstances, in the light of fact that this court has found that the applicant is neither a necessary nor a proper party and considering the urgency of the matter, the request for deferring the hearing of the petition is turned down.
12. At this stage the learned advocate for the applicant has requested the court to record that the Bench is making haste in disposal of the matter by rejecting the request of the applicant for not proceeding with the main writ petition.
Direct service is permitted.
(HARSHA DEVANI, J) (BHARGAV D. KARIA, J) Z.G. SHAIKH Page 10 of 10