Gujarat High Court
Super Industries & 14 vs Bayer Cropscience Limited & 3 on 20 June, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/CA/5586/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 5586 of 2014
In SPECIAL CIVIL APPLICATION NO. 6874 of 2014
With
CIVIL APPLICATION NO. 5591 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6874 of 2014
With
CIVIL APPLICATION NO. 5587 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6875 of 2014
With
CIVIL APPLICATION NO. 5592 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6875 of 2014
With
CIVIL APPLICATION NO. 5589 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6895 of 2014
With
CIVIL APPLICATION NO. 5594 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6895 of 2014
With
CIVIL APPLICATION NO. 5588 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6876 of 2014
With
CIVIL APPLICATION NO. 5593 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6876 of 2014
With
CIVIL APPLICATION NO. 5590 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6914 of 2014
With
Page 1 of 17
C/CA/5586/2014 ORDER
CIVIL APPLICATION NO. 5595 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6914 of 2014
================================================================
SUPER INDUSTRIES & 14....Applicant(s)
Versus
BAYER CROPSCIENCE LIMITED & 3....Respondent(s)
================================================================
Appearance:
CIVIL APPLICATION NO. 5586 of 2014
With
CIVIL APPLICATION NO. 5591 of 2014
In SPECIAL CIVIL APPLICATION NO. 6874 of 2014
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1 - 15
MR MIHIR THAKORE, SR. ADVOCATE, with MR KEYUR GANDHI, MR ANUJ
TRIVEDI & MR. RAHEEL PATEL, ADVOCATES, for NANAVATI ASSOCIATES,
for the Respondent(s) No. 1 - 2
MR KT DAVE, ADVOCATE for the Respondent(s) No. 3-4
CIVIL APPLICATION NO. 5587of 2014
With
CIVIL APPLICATION NO. 5592 of 2014
In SPECIAL CIVIL APPLICATION NO. 6875 of 2014
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1 - 15
MR MIHIR JOSHI, SR. ADVOCATE, with MR KEYUR GANDHI, MR ANUJ
TRIVEDI & MR. RAHEEL PATEL, ADVOCATES, for NANAVATI ASSOCIATES,
for the Respondent(s) No. 1 - 2
MR KT DAVE, ADVOCATE for the Respondent(s) No. 3-4
CIVIL APPLICATION NO. 5589 of 2014
With
CIVIL APPLICATION NO. 5594 of 2014
In SPECIAL CIVIL APPLICATION NO. 6895 of 2014
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1 - 15
MR KAMAL B. TRIVEDI, ADVOCATE GENERAL &, SR. ADVOCATE, with MR
Page 2 of 17
C/CA/5586/2014 ORDER
KEYUR GANDHI, MR ANUJ TRIVEDI & MR. RAHEEL PATEL, ADVOCATES,
for NANAVATI ASSOCIATES, for the Respondent(s) No. 1 - 3
MR KT DAVE, ADVOCATE for the Respondent(s) No. 4-5
CIVIL APPLICATION NO. 5588 of 2014
With
CIVIL APPLICATION NO. 5593 of 2014
In SPECIAL CIVIL APPLICATION NO. 6876 of 2014
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1 - 15
MR KS NANAVATI, SR. ADVOCATE, with MR KEYUR GANDHI, MR ANUJ
TRIVEDI & MR. RAHEEL PATEL, ADVOCATES, for NANAVATI ASSOCIATES,
for the Respondent(s) No. 1 - 2
MR KT DAVE, ADVOCATE for the Respondent(s) No. 3-4
CIVIL APPLICATION NO. 5590 of 2014
With
CIVIL APPLICATION NO. 5595 of 2014
In SPECIAL CIVIL APPLICATION NO. 6914 of 2014
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1 - 15
MR KEYUR GANDHI, MR ANUJ TRIVEDI & MR. RAHEEL PATEL,
ADVOCATES, for NANAVATI ASSOCIATES, for the Respondent(s) No. 1 - 2
MR KT DAVE, ADVOCATE for the Respondent(s) No. 3-4
================================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 20/06/2014
ORAL ORDER
Rule. Service of rule is waived by learned advocate Shri Keyur Gandhi for M/s. Nanavati Associates for respondents Nos. 1-2 (respondents Nos. 1-3 in Civil Applications Nos. 5589 & 5594 of 2014) and learned advocate Shri KT Dave for respondents Nos. 3-4 (respondents Nos. 4-5 in Civil Applications Nos. 5589 & 5594 of 2014) .
2. The present Civil Applications have been filed by the respective Page 3 of 17 C/CA/5586/2014 ORDER applicants to be joined as party-respondents in the group of respective petitions filed by the respondents-original petitioners, who are the importers of formulations, to challenge the guidelines framed by opponents Nos. 3 & 4, Union of India and the Registration Committee, original respondents Nos. 2 & 3 in the respective petitions. The petitions have been filed by the petitioners, who are the importers of the formulations challenging the guidelines framed by respondent No.2, Registration committee at Annexure-A on the grounds stated in the petitions for the prayer that the guidelines framed by respondent No.2 and published by way of Minutes of the 347 th Meeting held on 11.4.2014 may be quashed and set aside on the grounds stated in the petition.
3. The issue involved has a reference to the earlier round of litigation by way of Special Civil Application No. 2530 of 2011 and Special Civil Application No. 7928 of 2011 and allied matters and filed by the applicants herein, original petitioners, who had filed these petitions for the prayers on the ground of discrimination etc. Civil Application No. 7969 of 2013 and allied matters were filed for vacating the interim relief granted in those group of matters by the respondents herein. After hearing the learned counsels appearing for the parties as well as the learned Asst. Solicitor General, the Court modified/vacated the interim relief vide order dated 5.9.2013 subject to the conditions/riders as stated in detail in the order. Thereafter, again, Misc. Civil Application No. 2483 of 2013 and other applications were filed by the respondents in the respective petitions, who are the importers, for clarification and the order came to be passed on 28.3.2014. During the pendency of the petitions filed earlier, namely, Special Civil Application No. 7928 of 2011 and allied matters, respondent No.2 in the present group of petitions (main petitions) framed new guidelines, produced at Annexure-II (in SCA No. Page 4 of 17 C/CA/5586/2014 ORDER 6895 of 2014) which refers, "Guidelines for grant of registration of formulation of pesticides without registering their technical in view of para 47(b) of the Interim Order dated 05.09.2013 passed by the Hon'ble High Court of Gujarat in SCA No. 2530 of 2011"
4. The guidelines have been challenged and in particular clause 4 as produced at page 58 with regard to testing of the sample. Therefore, the civil applications came to be filed by the applicants herein who were the petitioners in the earlier round of litigation contending inter alia that none of the orders passed by the High Court have been challenged in appeal before any forum and in fact the guidelines which have been impugned in the present petitions are issued in compliance of the directions issued by the High Court vide its orders dated 5.9.2013 and 28.3.2014 in SCA No. 2530 of 2011 and allied matters (earlier round of litigation). Therefore, it is contended that the said petitions are pending for final haring and also a few review applications preferred by the applicants are also pending. It is therefore contended that the applicants are vitally affected and are necessary party to the proceedings. Therefore, it is contended that the applicants have been deliberately and intentionally not joined though fresh guidelines have been issued pursuant to the directions issued by the High Court in earlier round of litigations, that is, SCA No. 2530 of 2011 and SCA No. 7928 of 2011.
5. Heard learned counsel Ms. Manisha Lavkumar Shah for the applicants. Learned counsel Ms. Shah referred to the civil applications at length and referring to the earlier order passed by this court in Special Civil Application No. 7928 of 2011 and allied matters pointedly referred Page 5 of 17 C/CA/5586/2014 ORDER to the observations made by the High Court and submitted that it is pursuant to the contentions raised by the applicants who were the petitioners therein, the court passed the order with some riders/conditions. She pointedly referred to the aspect of deemed registration and submitted that the submissions made by the applicants herein have been accepted. Similarly, the contentions with regard to the aspect of testing of the samples of formulations and its technical grade to take care of the safety and bio-efficacy of human life and animals as well as the environmental effects have been considered. Therefore, it was submitted that as the applicants were the original petitioners who had filed those SCA Nos. 7928 of 2011 and SCA No. 2530 of 2011 etc. which are also pending for final hearing, the Government was directed to take note of the relevant aspects and have issued fresh guidelines. Therefore, the applicants are interested in the outcome of the present petitions which have been filed by the importers challenging the fresh guidelines as it will have a bearing on the petitions which have been filed by the petitioners and which are pending for final hearing touching the same issues of human safety, bio- efficacy and the aspect of standards and safety of the imported formulations of the technical grade/material. Learned counsel Ms. Shah therefore submitted that while considering these aspects, this court is required to consider the necessary and proper parties. She further submitted that justice and fairplay require that the applicants herein ought to have been joined as parties as they were very much parties in the earlier litigation as petitioners who had joined the petitioners herein in the fresh petitions. She submitted that in fact substantially the same issues are involved and therefore the applicants are required to be heard.
6. In support of her submissions, learned counsel Ms. Shah has referred to and relied upon the judgment of the Hon'ble Apex Court in the Page 6 of 17 C/CA/5586/2014 ORDER case of Competition Commission of India v. Steel Authority of India Limited and anr., reported in (2010) 10 SCC 744, and referred to the observations made in paras 108 and 109. She emphasised the observation, "...The consideration before the court, while determining such a question, is whether the said party is a necessary or a proper party and its presence before the court is essential for complete and effective adjudication of the subject-matter, inter alia, it should also be kept in mind that multiplicity of litigation is to be avoided and that the necessary or proper party should not be left out from the proceedings, particularly, before the tribunal or the forum."
7. Learned counsel Ms. Shah has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 10 SCC 82 (para
14) in the case of Sumtibai and ors. v. Paras Finance Co regd. partnership firm Beawer (Raj.) through Mankanwar (Smt) w/o Parasmal Chordia (dead) and ors. and also the judgment of the Hon'ble Apex Court in the case of Dattatreya and ors. Mahaveer and ors., reported in (2004) 10 SCC 665 (para 10). She emphasised the observations, "....The appellants knew it, being parties in the earlier proceedings of 1974. The fact thus remains that the material facts were not brought to the notice of the Court and the persons who were ultimately to be affected were avoided to be impleaded as parties. It was merely not a question of non-impleadment of necessary parties technically and strictly in accordance with the provisions of the Code of Civil Procedure rather was very much a question of proper parties being there before the court particularly in proceedings under Article 226 of the Constitution..."
8. She also submitted that as observed , the fairplay is the basic rule to Page 7 of 17 C/CA/5586/2014 ORDER seek a relief under Art. 226 of the Constitution of India. Learned counsel Ms. Shah therefore submitted that the court is required to consider as to whether the presence of a party is necessary to adjudicate the issue involved finally and completely. She emphasised that the court is required to consider whether the party is a necessary or a proper party for complete and effective adjudication of the subject-matter and to avoid multiplicity of the litigation.
9. Learned counsel Ms. Shah has also referred to and relied upon the judgment reported in 2011 (2) GLH 506 in the case of Swil Limited v. Gujarat Industrial Investment Corporation Ltd and anr. She has also referred to and relied upon the judgment in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and ors., reported in (1992) 2 SCC 524, and emphasised the observations made in para 10 & 14. She therefore submitted that the present applications may be granted.
10. Per contra, learned Sr. Counsel Shri Mihir Thakore appearing with learned advocates Shri Keyur Gandhi, Shri Anuj Trivedi and Shri Raheel Patel for M/s. Nanavati Associates have made the submissions on behalf of the opponents. Learned Sr. Counsel Shri Thakore referred to the papers and submitted that the applicants are neither necessary nor proper parties. He pointedly referred to the background of facts and also the order passed by this court in earlier round of litigation in Special Civil Application No. 7928 of 2011 and allied matters as well as the order passed in Misc. Civil Application No. 2483 of 2013 and other applications (for clarification). Learned Counsel Shri Thakore submitted that the new guidelines which have been framed, which have been referred to, are the subject-matter of challenge as it has been framed by Page 8 of 17 C/CA/5586/2014 ORDER respondent No.2 which is affecting the petitioners and it is not going to cause any prejudice to the applicants even if the petitions are allowed. Learned Sr. Counsel Shri Thakore referred to clause 4 of the guidelines and submitted that it has reference to the testing of the samples of every consignment of formulation and the language in which it is provided affects the petitioners herein. He submitted that the High Court had, by an earlier order, only made observations for framing proper guidelines considering the relevant aspects which have been not construed properly at the time of framing the fresh guidelines. He therefore submitted that when the guidelines or rules of the Government is challenged the applicants are not the necessary or proper parties. He emphasised and submitted that before the applicants could be joined as party they have to show that they are affected legally and they have any legal interest apart from any commercial interest. He emphasised that no legal right of the applicants is affected and only commercial interest or right is to be affected is not a ground for joining as party in the present petitions filed by the petitioners. He submitted that only the Government of India is a necessary party inasmuch as the petitioners are only challenging the guidelines framed by the government or its authority and the applicants have no right to be joined as party therein. He submitted that the applicants are not likely to be affected and therefore the applicants who desire to be joined as party may not be joined.
11. Learned Sr. Counsel Shri Thakore submitted that when the enactments or statutes are challenged, the other parties who may be the beneficiary of such enactment/statute or policy cannot be joined as party. In support of his submission, he has referred to and relied upon the judgment in the case of the Film Federation of India v. Union of India and ors., reported in AIR 1986 Madras 43 (para 16). He submitted that it is Page 9 of 17 C/CA/5586/2014 ORDER for the government to support its own policy or legislation and in some cases if the court wants assistance the court may permit a party to intervene. He strenuously referred to these observations and submitted that a situation may arise where, though the government may not desire to challenge the decision of the High Court, but other private party would insist upon canvassing the validity of the enactment or the policy. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Government of Andhra Pradesh & anr. v. G. Jaya Prasad Rao and ors., reported in (2007) 11 SCC 528 (para 29). He emphasised the observations, "29. It is true that when the validity of the rules is challenged it is not necessary to implead all persons who are likely to be affected as party. It is not possible to identify who are likely to be affected and secondly, the question of validity of the rule is a matter which is decided on merit and ultimately, if the rule is held to be valid or invalid, the consequence automatically flows. Therefore, the original applications filed before the Andhra Pradesh Administrative Tribunal or for that matter before the High Court does not suffer from the vice of non-joinder of necessary party."
12. Learned Sr. Counsel Shri Thakore has also referred to the judgment relied upon by learned counsel Ms. Shah in the case of Competition Commission of India (supra). He has also referred to the observations made in the case of Ramesh Hirachand Kundanmal (supra) and emphasised the observation, ".....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,therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was Page 10 of 17 C/CA/5586/2014 ORDER considered in Amon v. Raphael Tuck & Sons Ltd [(1956) 1 ALL ER 273] wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England [(1950) 2 All ER 605, 611] that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:
"The test is, 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.' "
Therefore, learned Sr. Counsel Shri Thakore submitted that the applications for joining party may not be granted.
13. In view of these rival submissions, it is required to be considered whether the present civil applications for joining party can be granted or not.
14. Though the party has a right as per dominus litis to join parties, however, dominus litis is one aspect where the party filing the proceedings can decide or choose whom he would like to be joined as party. However, at the same time, whether the party or the person who is coming forward to be joined as party has a right to be joined as party is required to be considered in background of the facts and the relevant material. The major aspect which requires to be considered is whether any relief is claimed against the party and any prejudice is likely to be caused, whether any legal right is affected of the person who desires to be joined as a party.
15. The distinction between the necessary and proper parties is very well accepted. It is also well accepted that a party may not be a necessary Page 11 of 17 C/CA/5586/2014 ORDER party, but may be a proper party. A proper party is one in whose absence the order could be passed but whose presence is necessary for complete and final decision on the issues involved in the proceedings. In catena of judicial pronouncements the courts have made observations referring to the underlying object and the particular test for considering this aspect of proper party. Therefore, a person can be joined as a party if it is necessary to adjudicate completely and effectively the issues involved in the matter.
16. In background of the facts discussed hereinabove, the applicants who desire to be joined as party in the present petitions had earlier filed Special Civil Applications raising issues regarding discrimination to the indigenous manufacturers of the pesticides vis-a-vis the importers like the petitioners in the present petitions. The issues which have been raised referring to the aspect of standards of safety, bio-efficacy and environment, etc. are the basis for broad guidelines laid down by the government and the court had on earlier occasion, while deciding the petitions filed by the applicants herein as petitioners, passed the order after hearing the petitioners (applicants herein) as well as the respondents who are the present petitioners. Therefore, the guidelines are framed by the government which is challenged raising certain issues which are relevant for the purpose of deciding and balance the rival claims of the indigenous manufacturers and importers and also human safety, environmental issues and bio-efficacy. The court, while passing the order earlier had focused on this aspect only irrespective of the rival clamis made by both the sides and the Union of India is said to have come out with fresh guidelines which is a subject-matter of challenge in the present petitions.
Page 12 of 17 C/CA/5586/2014 ORDER17. Therefore, the contentions raised by learned Sr. Counsel Shri Thakore that no relief is claimed against the present applicants and assuming that the petitions filed by the petitioners are allowed, it will not affect the present applicants cannot be readily accepted. The submissions made by learned Sr. Counsel Shri Thakore referring to clause 4 of the fresh guidelines with regard to the test of the imported formulations at the port stating that it has to do with the import of formulations only and the applicants are not concerned is required to be considered in proper perspective for the purpose of human safety, bio-efficacy and the standards of scrutiny which are required to be adhered to by both the indigenous manufacturers as well as for the imported material. It will therefore have a bearing while considering such an issue qua all the manufacturers or the persons and it cannot be said that no relief is claimed and therefore they are not to be affected at all.
18. Another facet of the submissions made by learned Sr. Counsel Shri Thakore is that legal right or interest has to be shown apart from commercial interest or right. Though the submissions have been made the commercial interest and the legal interest would have overlapping effect inasmuch as the applicants would be claiming the right to carry on trade, business and equality of opportunity and the treatment by the government. Therefore, though it could be a policy matter where the court would not be concerned to the extent of commercial interest or rival claims, but public interest demands that the policy must be taking care of the human safety, bio-efficacy and environmental issues which could be said to be in public interest.
19. The reliance placed by learned Sr. Counsel Shri Thakore on the judgment in the case of The Film Federation of India (supra) to support Page 13 of 17 C/CA/5586/2014 ORDER his contention that for the challenge to the constitutionality of the statute the government alone is a necessary party has to be read in background of the facts. It is required to be mentioned that what is challenged is not the statute, but the policy, and even the policy which is framed intended to give effect to a statutory provision or implement a legislation has to conform to the test of reasonableness and Art. 14. In the judgment of the High Court of Madras reference is made to the constitutionality and validity of a statute whereas in the present case it is framing of the guidelines in purported exercise of powers under the statute. In other words, whether the policy framed is reasonable in conformation of the statutory powers and whether the powers are exercised to subserve the legislative intent has to be considered.
20. Therefore, when the policy is sought to be challenged on the ground with regard to certain provisions particularly with regard to the aspect of scrutiny and safety, it cannot be said that it is only the government which is a party concerned and the applicants who are representing the local manufacturers are not required to be heard.
21. It is well-accepted that the policy of the government which has a bearing on the public interest or pubic law element could be subject to judicial scrutiny on the test of reasonableness and Art. 14. In other words, while examining the policy which may have been affecting one set of persons like the petitioners, but at the same time if the policy is aimed at safeguarding public interest, like in this case by safety standards, quality, bio-efficacy and environmental issues, it cannot be said that only the government is the party relevant for deciding such issues.
22. The reliance placed by learned Sr. Counsel Shri Thakore on the Page 14 of 17 C/CA/5586/2014 ORDER judgment in the case of Government of Andhra Pradesh and anr. v. G. Jaya Prasad Rao and anr. (supra) to support his contention cannot be accepted as the facts are totally different as it was relating to a policy and accelerated promotion which was a subject-matter and in that background the observations have been made that every individual is not required to be joined when the policy is considered. It is in this background when the rule or the policy is considered the observations have been made in para 29 which will not have bearing in the present case. On the other hand, the decision in the present set of petitions filed by the petitioners (opponents in these civil applications) will have a bearing on the issues raised by the applicants in the particular petitions filed by them earlier which are pending for final hearing. The Hon'ble Apex Court in the case of Sumitbai and ors. (supra) has observed, "The following words of Lord Denning in the matter of applying precedents have become locus classicus:
'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive....' ."
23. Therefore, what could be the real test will depend upon the facts of the case and whether the party is having direct or legal interest in the issue involved. As discussed above, legal and commercial interest are overlapping and it cannot be said that the applicants are not having any such interest directly. The Hon'ble Apex Court in a judgment in the case of Ramesh Hirachand Kundanmal (supra) has referred to these aspects which have been quoted hereinabove, wherein quoting Devlin, J. in the Page 15 of 17 C/CA/5586/2014 ORDER case of Amon v. Raphael Tuck & Sons Ltd. [(1956) 1 All ER 273], it is observed, "The test is, 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.' "
24. In the facts of the case, therefore, it cannot be said that the applicants who desire to be joined as party and who have also filed the petitions earlier which are pending raising similar contentions or the issues are not affected or having direct interest in the subject-matter. Therefore, it is desirable and necessary that the present applications are allowed and they are joined as parties in the interest of justice.
25. Therefore, the present civil applications for joining party deserve to be allowed and accordingly stand allowed. The learned advocates for the original petitioners in the aforesaid Special Civil Applications are directed to carry out the amendment and serve copies to the applicants, who are the newly added respondents. Rule is made absolute.
The Registry is directed to place a copy of the order in each matter.
(RAJESH H.SHUKLA, J.) (hn) FURTHER ORDER After the order was pronounced, learned advocate Shri Anuj Trivedi appearing in some of the Civil Applications for the original petitioners has requested for stay of operation of the order, which is Page 16 of 17 C/CA/5586/2014 ORDER declined.
(RAJESH H. SHUKLA, J.) Page 17 of 17