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[Cites 13, Cited by 0]

Gujarat High Court

Jaydeepsinh Govindsinh Vaghela vs Deputy Engineer, Mgvcl on 2 July, 2021

Author: Ashutosh J. Shastri

Bench: Ashutosh J. Shastri

     C/SCA/529/2021                              IA ORDER DATED: 02/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
                                In
            R/SPECIAL CIVIL APPLICATION NO. 529 of 2021
==========================================================

CHARUTAR VIDYA MANDAL THROUGH HONORARY SECRETARY SHANTIBHAI GOKALBHAI PATEL Versus JAYDEEPSINH GOVINDSINH VAGHELA ========================================================== Appearance:

MR DHAVAL C DAVE SR. ADVOCATE with MR UDAYAN P VYAS for the PETITIONER(s) No. MR RITURAJ M MEENA for the RESPONDENT(s) No. MR.SHASHIKANT PARMAR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 02/07/2021 IA ORDER
1. By way of this application, the applicant has prayed to permit the applicant to be joined as respondent no. 3 in the main Special Civil Application which is numbered as Special Civil Application No. 529 of 2021.
2. The case of the applicant is that the applicant is formed and incorporated way back in the year 1945 as a Society registered under the provisions of Societies of Registration Act, 1860 and consequent upon the advent of the Bombay Public Trust Act, 1950, the applicant came to be registered as Public Trust by virtue of deeming fiction in view of Section 2(13) of the Bombay Public Trust Act, 1950. The Trust is imparting education in the needy area by establishing as many as 45 educational institutions in various disciplines on different levels and is having by now its own university in the name and style of "CVM"

University as Private University under the provisions of Gujarat Page 1 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 Universities Act, 2009.

2.1. It is the case of the applicant that by virtue of Special Civil Application No. 529 of 2021. the original petitioner had sought a direction against the Deputy Engineer MGVCL, at Vallabh Vidyanagar, District : Anand to consider the application and provide residential electric connection at the residence of the petitioner, address whereof, is shown in the cause title. Looking to the contents of the petition and the averments, it clearly transpires that the applicant is a necessary and proper party, who ought to have been joined in the petition to enable the Court to arrive at a just decision upon effective adjudication and the presence of the applicant is necessary for the ultimate outcome of the proceedings in just manner and, therefore, the applicant deserves to be impleaded as a party respondent. The applicant has asserted that in para 2.2. of the memo of petition, a specific allegation is made by the original

- petitioner against the applicant - Mandal, however, there are proceedings in the form of Regular Civil Suit No. 472 of 2015 filed by the original petitioner and as such, the applicant is also a necessary and proper party and apart from that the applicant deserves a fair and just opportunity to meet with the allegations levelled by the original petitioner. It is submitted that the premise in question is the subject matter of Civil Suit and in the Suit which is numbered as Regular Civil Suit No. 299 of 2018, the present applicant is impleaded as party defendant and, therefore, also, the applicant deserves to be impleaded as party respondent. It has further been submitted that pursuant to the rejection of Exhibit-5 application for injunction as well as for seeking restoration of the electricity connection moved by original petitioner vide Exhibit-47 in above referred Regular Civil Suit No. 299 of 2018, the same was the subject matter of challenge in Special Civil Application No. 11808 of Page 2 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 2020 in which also, Civil Application No. 1 of 2021 was filed by the present applicant to be joined as party respondent. Since, initially, the petitioner did not join the applicant - Mandal as a party and after perusing the averments and the controversy, the Honourable Court vide order dated 28.10.2020 was pleased to allow the Civil Application and permit the applicant to be impleaded in the main Special Civil Application. According to the applicant it is a serious conduct on the part of the original petitioner that the said petition after bi parte hearing came to be dismissed as withdrawn by virtue of order dated 27.11.2020 and still in a fresh petition which is otherwise not permissible to be filed in view of such dismissal, again the applicant is not joined as a party in this petition as well and as such also, since an attempt has been made to get some order favourable behind the back of the present applicant to arrive at just decision to adjudicate effectively the proceedings, the presence of the applicant is expedient and the applicant being necessary and proper party be joined.

3. Learned Senior Advocate Mr. Dhaval C. Dave appearing with Mr. Udayan Vyas, learned advocate for the applicant has submitted that the applicant in aforesaid circumstances is necessary and proper party and has further submitted that upon perusal of the earlier order passed in Civil Application No. 1 of 2020 in Special Civil Application No. 11808 of 2020 would also clearly indicate that the applicant deserves to be joined and a reference is made to the said order dated 28.10.2020 reflecting on page 61 of the main petition compilation and thereafter, yet another order is brought to the notice of this Court dated 27.11.2020 on page 71 of the original petition compilation. The said petition according to learned Senior Advocate Mr. Dave has been specifically examined by the Court upon request of the original petitioner, but second round of litigation may Page 3 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 not be precipitated by the original petitioner and, therefore, the petition itself is not maintainable and in any case in the earlier petition, the applicant - Mandal was also impleaded as party respondent and, therefore, keeping all these circumstances in mind, the presence of the applicant is necessary. With a view to substantiate his contention, learned Senior Advocate Mr. Dave has relied upon the decision delivered by this Court in the case of Kuvrabhai Bharabhai Bharvad v. State of Gujarat reported in 2016 (0) AIJEL-HC236142 and has pointed out that after dealing with all the relevant decisions, a specific conclusion is arrived at in para 14 that even if there is no relief prayed against the applicant looking to the averments, the concerned applicant is a necessary and proper party and here also though a basic relief is filed against the electricity company, looking to the averments contained in the petition, presence of the applicant is necessary. For this an attention is drawn to para 2.4, which contains allegations against the applicant and further, controversy originally erupted is on account of the application submitted by the present applicant and, therefore also the ratio laid down by the Division Bench of this Court as stated above is squarely covering the stand of the applicant. It is further submitted by referring to a decision of the Apex Court in the case of Aliji Momonji & Co. v. Lalji Mavji & Ors., reported in (1996) 5 SCC 379, precisely para 5 that the landlord is a necessary and proper party and as such, on the basis of such averments, it has been contended specifically that simply because no relief is sought in this peculiar background of fact, it cannot be said that the applicant is not a necessary party, on the contrary, for effective adjudication of the Special Civil Application, presence of the applicant is very much expedient and filing of the Suit by the Mandal cannot be aground not to conveniently join the applicant by the original petitioner.

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C/SCA/529/2021 IA ORDER DATED: 02/07/2021

4. As against this, learned advocate Mr. Rituraj Meena, appearing on behalf of the electricity company has made an attempt to assist the Court by mentioning that applicant's presence is very much necessary for giving consent and, therefore, also, when ultimately a request is to be adjudicated upon about grant of electricity connection to the original petitioner, presence of applicant - Mandal is very much necessary more particularly, in earlier round of litigation, the applicant was very much joined by a specific order.

5. In contrast to this, learned advocate Mr. Shashikant Parmar appearing on behalf of the original petitioner has ultimately opposed the grant of application on the ground that yet the applicant - Mandal is to establish its ownership over the property in question. Further, the property in question so long as in an independent suit which has been filed, the applicant is declared as owner, and it is always open for the original petitioner not to join applicant and in any case, ultimately it is a settled position of law that electricity being essential services for grant of such consent of any concerned landlord, even if is of any significance and as such, the applicant has no case to be impleaded in the proceedings which are independently initiated by the original petitioner. The consent of landlord is not required by virtue of Section 43 of the Electricity Act and, therefore, when the relief is not sought against the applicant, is not necessary and proper party. Here is a case, in which, it appears that the electricity company is trying to favour the present applicant and as such, no stand of the electricity company be considered. The decisions which have been pointed out by learned Senior Advocate Mr. Dave are in different facts and circumstances and therefore, cannot be stretched to the present controversy. Thus, the same are not applicable and hence, the application deserves to be dismissed. A detailed affidavit-in-reply by the Page 5 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 opponent is requested to be considered and on the basis of it, a request is made to allow the applicant to join in the proceedings. No other submissions have been made.

6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears from the pleadings and the record of the original petition that by a detailed order, the co-ordinate Bench of this Court allowed the application in earlier round of litigation in the form of Special Civil Application No. 11808 of 2020 and the said application was granted by stiff contest by the very same learned advocates and as such, the order is self explanatory. Para 5 of the said order is a concluding part and, therefore, the same is reproduced hereunder :-

"[5] Once the Court has considered the applicant to be joined as party defendant in the main suit obviously, in any of the interim application, the applicant ought to have been made party respondent. The Court is of the view that considering the nature of dispute involving both grant of electric connection as well as with regards to right, title or interest in the disputed property, the applicant who is already treated as necessary party has also right of same in any subsequent application. The present application being in that regard, the Court is inclined to hold the applicant to be a necessary party and therefore, is ordered to join the applicant as party respondent No.3 in the main petition being Special Civil Application No.11808 of 2020. The registry is directed to cause the change in the title by adding the applicant-Charutar Vidhya Mandal through its Secretary Shantibhai Gokalbhai Patel as party respondent No.3 in the proceedings. It is open for the newly added respondent No.3 to file reply in the main petition."

6.1. In addition thereto, the said petition has been contested and vide order dated 27.11.2020, the petitioner sought permission to withdraw the petition and it is only on account of the fact that the Court has not examined the merit, but the same came to be disposed of. However, the order is clearly reflecting that it tantamounts to be unconditionally Page 6 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 withdrawal. The order dated 27.11.2020 is reproduced hereunder since it has got bearing upon the present controversy.

"After arguing for sometime, learned advocate Mr. Shashikant Parmar for the petitioner seeks permission to withdraw the present petition. The permission, as prayed for, is granted. The petition is dismissed as withdrawn. It is clarified that the Court has not gone into the merits of the case. Notice is discharged. In view of the above, Misc. Civil Application (for recall) No.2 of2020 and Civil Application(for direction) No.3 of 2020 do not survive and the same stand dismissed accordingly."

7. Looking to the aforesaid order disposing of the petition after hearing both the sides including the present applicant since the Mandal was already joined in the proceedings, again an attempt is made to file a separate petition though its maintainability is seriously questioned, but again the present opponent knowing fully well about all these proceedings, conveniently has not joined in this fresh petition as well and, therefore, this conduct itself is also self explanatory which is not possible to be unnoticed by this Court. Apart from that the averments which are made in a fresh petition itself clearly indicates a reference about the present applicant being complainant as mentioned in para 2.4. and further an assertion with respect to the allegations against the applicant and as such, it appears that somehow a specific reference has been made about the present applicant - Mandal and it has also been voiced out that the notices which have been issued by the authority smelled of collusion with Charutar Mandal and when that be so, simply because relief is not sought against the applicant - Mandal in this fresh petition, the basis about complaint and the allegations levelled against the applicant are of significance and as such, it appears to this Court from overall circumstances that the case is made out by the applicant to be impleaded for effective adjudication of the fresh petition which is submitted by the original petitioner. At this stage, the Court is in assistance by the Page 7 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 observations made by the Division Bench of this Court in the case of Kuvrabhai Bharabhai Bharvad (supra) and the observations contained in para 14 and 15 since are considered, the Court deems it proper to reproduce hereunder:-

"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 has proper re-audit is carried out by the Special Auditor. There are allegations leveled against the appellant by name in the petition as observed herein-above 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 Special Civil Application No.268 of 2015.
15. Accordingly, the impugned order dated 14.07.2016 passed by the learned Single Judge is set aside. The appellant/applicant is ordered to be joined as party respondent in Special Civil Application No. 268 of 2015 filed by respondent no. 4. The appeal is accordingly, allowed. No order as to costs. Consequently, the Civil Application also stands disposed."

7.1. Yet another decision which has been relied upon is also some what related to the present controversy and, therefore, the observations made by the Apex Court in the case of Aliji Momonji & Co.,(supra), precisely para 5 since taken into consideration, the same is reproduced hereunder :-

"5.The controversy is no longer res integra. It is settled law by catena of decisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the disputes, though no relief is sought, he is a proper party.
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C/SCA/529/2021 IA ORDER DATED: 02/07/2021 Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is: whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licences would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent off the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building. Under those circumstances, the question of the commercial interest would not arise. In Ramesh Hirachand Kundanmal's case [supra], this Court had pointed out in para 18 of the judgment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject matter of the litigation and the addition thereof would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled, It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that 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 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 a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary Page 9 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021 C/SCA/529/2021 IA ORDER DATED: 02/07/2021 party when the witness has a commercial interest. This Court in New Redbank Tea Co. Pvt. Ltd. vs. Kumkum Mittal & Ors. [(1994) 1 SCC 402] has pointed out that respondent 11 who filed a suit for specific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circumstances, this Court had held that respondent 11 was neither necessary nor proper party in the lease- hold interest involved in the suit. In Union of India v. Distt. Judge, the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10, CPC for determination of the compensation in respect of the acquired land. In Bihar State Electricity Board vs. State of Bihar & Ors. [(199) 4 Supp. 3 SCC 743] the same question was also reiterated and it was held that the Electricity Board was a person interested and also a necessary party. In Anil Kr. Singh vs. Shivnath Mishra [(1995) 3 SCC 147] similar question was answered holding that the respondent was a necessary party."

7.2. Hence, keeping in view this proposition of law laid down by the decisions as stated herein above, about the concerned and necessary party, this Court is of the opinion that the application deserves to be allowed more particularly, in view of the fact that it has been made time and again by the original petitioner to get the order somehow behind the back of the Mandal especially when the Mandal has been party to the suit as also in the earlier round of litigation. Hence, without much discussing on the issue about merit or demerit at this stage, the application is allowed in terms of para 6(A) and the applicant is joined as party respondent no. 3 in Special Civil Application No. 529 of 2020. As a consequence of it, cause title may be amended accordingly.

The application stands disposed of accordingly.

(ASHUTOSH J. SHASTRI, J) phalguni Page 10 of 10 Downloaded on : Tue Aug 31 14:17:25 IST 2021