Rajasthan High Court - Jodhpur
M/S Gotan Limestone Khanij Udyog Pvt. ... vs State Of Rajasthan on 28 February, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12253/2019
M/s Gotan Limestone Khanij Udyog Pvt. Ltd., Having Its
Registered Office At D7, Shastri Nagar, Jodhpur Rajasthan
Through Its Power Of Attorney Holder Shri Rajesh Kedia Son Of
Shri Bajrang Lal Kedia, Age 55 Years Resident Of 53 Officers Flat,
Jublee Road, Northen Sahar, Jamshedpur Jharkhand.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Mines
Department, Government Secretariat, Jaipur.
2. Joint Secretary, Mines (Gr. 2) Department, Government
Secretariat, Jaipur.
3. Director, Department Of Mines And Geology, Rajasthan,
Udaipur.
4. Assistant Mining Engineer, Department Of Mines And
Geology, Gotan, Tehsil Merta City, District Nagaur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 404/2013
J.k. Cement Ltd.
----Petitioner
Versus
State Of Raj. And Ors.
----Respondent
For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Adv., On VC
Assisted by Ms. Alankrita Sharma, on
VC
Mr. Anjay Kothari
Mr. Mukesh Gurjar
For Applicant: Mr. Sudhir Gupta, Sr. Adv. Assisted by
Mr. Ramit Mehta
Mr. Tarun Dudia
Mr. P.K. Bhalla
Ms. Shweta Chauhan
Mr. Saurabh Maheshwari
For Respondent(s) : Mr. Sandeep Shah, Sr. Adv., AAG with
Ms. Akshiti Singhvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order (Downloaded on 28/02/2022 at 08:41:15 PM) (2 of 25) [CW-12253/2019] Reserved (On Application): 24/02/2022 Pronounced (On Application: 28/02/2022
1. On 16.02.2022, when the matters came up for consideration, this Court had passed an order, relevant portion of which reads as under:
"... The submissions at length on 226(3) application were addressed by counsel for the petitioner Mr. Kamlakar Sharma, Sr. Advocate assisted by learned counsel Ms. Alankrita Sharmaand Mr. Sandeep Shah, AAG-cum-Sr. Advocate for State assisted by learned counsel Ms. Akshiti Singhvi.
When a query was made after hearing at length and almost on the conclusion of submissions regarding the application, Mr. Sandeep Shah sought one day's time to address the Court on letter dated 06.08.2021 submitted by counsel for the petitioner during the course of day.
The submissions of Mr. Kamlakar Sharma, Sr. Advocate are complete on application under Order 1 Rule 10 CPC and Mr. Sudhir Gupta, Sr. Advocate shall address the Court tomorrow i.e. 17.02.2022."
2. Thereafter, on 17.02.2022, this Court, while reserving the order on the Application under Article 226 of the Constitution of India, passed an order, relevant portion of which reads as under:
"... Submission of all parties on the application under Article 226(3) of the Constitution of India are complete. Order reserved on application under Article 226(3) of the Constitution of India.
List the matters on 24.02.2022 on the application under Order 1 Rule 10 CPC."
The order on the Application under Article 226 (3) of the Constitution of India was pronounced by this Court on 24.02.2022.
On that date, arguments were heard on the application under Order 1 Rule 10 of CPC (in above-numbered CWP 12253/2019) and the order was reserved on the said application.
(Downloaded on 28/02/2022 at 08:41:15 PM)(3 of 25) [CW-12253/2019] 3. Thus, the present order decides only the Application
preferred by the Applicant M/s. J.K. Cement Ltd. under Order 1 Rule 10 CPC (in above-numbered CWP 12253/2019)
4. The prayer made in the application under consideration reads as follows:
"It is therefore most respectfully prayed that this Hon'ble Court may be pleased to:-
(i) Allow the present Application under Order 1 Rule 10 (2) read with Section 151 of the CPC and Applicant be impleaded as party
- respondent and be heard in this Writ Petition in the interest of the Justice.
(ii) Pass any other order in the facts and circumstances of the case.
5. For the sake of brevity, the brief facts of the case as noticed by this Court are as follows:
5.1 That a mining lease bearing Mining Lease No.45/1993 was granted by the State of Rajasthan (through the Joint Secretary, Department of Mines) to M/s. Gotan Limestone Khanij Udyog Pvt.
Ltd., which was a partnership Firm at the relevant time, and the said lease was renewed, as per the law. The said partnership Firm, in March 2012, was incorporated as a private limited company.
5.2 That by the order dated 25.04.2012, the transfer of the said mining lease in question from the partnership Firm to the petitioner-Company, was approved by the State of Rajasthan (through the Director, Mines).
5.3. Thereafter, in July, 2012, the 100% equity shareholding of the petitioner-Company was transferred by its promoter-Directors in favour of M/s UltraTech Cement Ltd. and the petitioner Company thus became a subsidiary Company of M/s Ultratech Cement Ltd.;
(Downloaded on 28/02/2022 at 08:41:15 PM)(4 of 25) [CW-12253/2019] thereby, the mining lease in question was also acquired by M/s.
Ultratech Cement Ltd.
5.4. On 16.12.2014, the State/respondent passed an order by which the aforementioned order dated 25.04.2012, approving the transfer of the mining lease in question in favour of the petitioner Company, was declared to be null and void.
5.5 The said cancellation of the mining lease was challenged by the petitioner-Company before this Hon'ble Court by filing SBCWP No.9669/2014, which was allowed by the Hon'ble Single Bench of this Court vide order dated 25.03.2015, with a direction to the State respondents to hand over back the leased area of mining.
5.6 Thereafter, on an appeal (D.B. Civil Special Appeal (Writs) No. 328/2015) being preferred by the State respondents against the said order, the conclusion drawn by the Hon'ble Single Bench was affirmed by the Hon'ble Division Bench of this Court.
5.7 The State/respondents thereafter filed a Special Leave Petition, being SLP No. 23311/2015 before the Hon'ble Supreme Court, wherein vide order dated 20.01.2016, the following was observed:
"We, however, direct the State of Rajasthan to frame and notify its policy in the matter within one month from the receipt of a copy of this order. The State of Rajasthan may within one month thereafter pass an appropriate order in respect of the mining lease in question in the light of the policy so framed. Till such a decision is taken, status quo may be maintained."
5.8 Thereafter, the State Legislature repealed the Rules of 1986 and enacted the Rajasthan Minor Minerals Concession Rules, 2017.
5.9 In pursuance of the direction of the Hon'ble Supreme Court in the aforementioned S.L.P. No. 23311/2015, the petitioner sought the (Downloaded on 28/02/2022 at 08:41:15 PM) (5 of 25) [CW-12253/2019] permission for transfer of the mining lease in question which was rejected vide order dated 28.11.2017 passed by the Joint Secretary, Department of Mines whereby the petitioner's representation dated 10.05.2017 was rejected and earlier order dated 16.12.2014 declaring the transfer of mining lease in question as null and void, was upheld.
6. Learned Senior Counsel for the applicant, Mr. Sudhir Gupta, assisted by Mr. Ramit Mehta submits the applicant is a proper and necessary party to this writ petition, as it is a party to the dispute pertaining to the mining lease in question.
7. Learned Senior Counsel further submits that the relief sought by the petitioner in this writ petition will have a direct and serious impact on the rights of the applicant, and that the applicant has also filed a writ petition before this Court challenging the claims of the petitioner Company and the reliefs sought by the petitioner-Company. And that, the applicant was a party to the SLP before the Hon'ble Apex Court, being SLP No. 23311/2015.
8. Learned Senior Counsel further submits that in the previous round of litigation before this Court, the applicant was impleaded as a party to the case, vide a detailed and speaking order dated 28.01.2015 in CWP No.9669/2014, wherein the relief sought by the petitioner company is similar to the relief sought by the petitioner company in the present petition, and therefore, the applicant ought to be impleaded as a party to this case as well.
9. Learned Senior Counsel further submits that limestone has been notified as a 'major mineral', and for this reason also, the mining lease may only be granted through a process of auction as laid down under Section 10 of the Mines & Minerals (Development and Regulation) Act, 1957 read with the Mineral Auction Rules, 2015. And that, non impleadment of the applicant would gravely (Downloaded on 28/02/2022 at 08:41:15 PM) (6 of 25) [CW-12253/2019] prejudice its rights in its pending writ petition, being CWP No. 404/2013, and the same also affects the rights of parties to participate in the auction process for seeking grant of mining lease, and thereby would result in a travesty of justice.
10. Learned Senior Counsel drew this Court's attention to the following portion of the judgment passed by the Hon'ble Apex Court in the aforementioned Special Leave Petition, which reads as under:
"In the recent past, there have been serious allegations of illegalities and deficiencies in the regulatory regime of mining leases. As noted by this Court in Goa Foundation (supra), the Government of India appointed a former Judge of this Court, Justice M.B. Shah to go into various aspects of illegal mining, including grant and transfer of leases. It is a matter of public knowledge that in the wake of reports submitted by Justice Shah, the policy framework and statutory provisions have undergone changes at various levels. Changes suggested include the mode and manner of grant and renewal of lease rights. A facet of this aspect has been gone into by us in our order dated 04th January, 2016 in Civil Appeal Nos. 4845-4846 of 2015 titled Sulekhan Singh & Company v. State of U.P. Since, the mining rights vest in the State, the State has to regulate transfer of such rights in the best interest of the people. No lessee can trade mining rights by adopting a device of forming a private limited company and transfer of entire shareholding only with a view to sell the mining rights for private profit as has happened in the present case. We may note that Under Section 12A(6) added by the Mines and Minerals (Development and Regulation) Amendment Act, 2015, it has been provided that transfer of mineral concessions can be allowed only if such concessions are granted through auction."
11. Learned Senior Counsel for the applicant, in support of the submissions so made, placed reliance on the following case laws:
(Downloaded on 28/02/2022 at 08:41:15 PM)(7 of 25) [CW-12253/2019] 11.1 R. Dhansundaru v. A.N. Umakanth (2020) 14 SCC 1 wherein the Hon'ble Apex Court, at Paras. 8 and 10, observed as follows:
"8. The law of procedure relating to the parties to a civil suit is essentially contained in Order I of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and mis-joinder of parties. Rule 10 of Order I specifically provides for addition, deletion and substitution of parties; and the proposition for transposition of a party from one status to another, by its very nature, inheres in Sub-rule (2) of Rule 10 of Order I Code of Civil Procedure that reads as under:
"10. (2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appeared to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who or to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added"
10. It remains trite that the object of Rule 10 of Order I Code of Civil Procedure is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceedings could be avoided. This Court explained the principles, albeit in a different context, in the case of Anil Kumar Singh v. Shivnath Mishra: MANU/SC/0652/1995 :
(1995) 3 SCC 147 in the following:
"7. ... The object of the Rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.
11.2 Prabodh Verma v. State of U.P. (1984) 4 SCC 251 wherein the Hon'ble Apex Court, at Paras. 28 and 50, observed asunder: -
(Downloaded on 28/02/2022 at 08:41:15 PM)(8 of 25) [CW-12253/2019] "28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.
50. To summarize our conclusions:
(1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties."
11.3 Udit Narain Singh Malpaharia v. Addl. Member Board Revenue AIR 1963 SC 786 wherein the Hon'ble Apex Court, at Paras. 7 and 13, observed as under:-
(Downloaded on 28/02/2022 at 08:41:15 PM)(9 of 25) [CW-12253/2019] "7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; 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 on the question involved in the proceeding.
13. In the present case Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses that the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected."
12. Learned Senior Counsel Mr. Kamlakar Sharma, assisted by Ms. Alankrita Sharma, appearing on behalf on the petitioner submits that the contention of the applicant, that the mining lease in question pertaining to cement grade limestone is for industrial use and a notified major mineral and to which provision of the Rajasthan Minor Mineral Rules, 2017 have no application, is absolutely incorrect. And that, the State of Rajasthan vide order dated 25.04.2012 and under Rule 15 of the Rajasthan Minor Mineral Concession Rules, 1986 allowed the transfer of the mining lease in question from the partnership Firm to the petitioner company, and that the State is only empowered to do so by framing Policy/Rules for minor minerals under Section 15 of the (Downloaded on 28/02/2022 at 08:41:15 PM) (10 of 25) [CW-12253/2019] Mines and Minerals (Development and Regulation) Act, 1957, while the power to frame Rules/Policy with regard to major mineral lies solely in the domain of the Union Government, under the said Act of 1957.
13. Learned Senior Counsel further submits that the Union Government has notified 'limestone' only for specific purposes as a major mineral. And that, the Hon'ble Apex Court, in the case of Rukmani Bai Vs. The State of Madhya Pradesh AIR (1975) 1 SCC 627 held that limestone is both, a minor mineral and a major mineral depending on its use. And that, the Rules of 2017 has included limestone as a minor mineral as is reflected from Sr. Nos.
12 and 13 of Schedule 1 and Sr. Nos. 2 and 3 to Schedule 2 of the Rules of 2017, and that the mining lease in question has been a minor mineral lease for more than 40 years.
The relevant portion of the aforementioned judgment reads as follows:
"10. That takes us to the second question, namely, whether the application for renewal made by the appellant was proper? The only ground on which the State Government rejected the application for renewal was that against column 6 in paragraph 3 the mineral which the appellant intended to mine was described as "limestone for burning as a minor mineral". The State Government took the view, and this view was affirmed by the High Court, that "limestone for burning" was a major mineral and the application for renewal was, therefore, an application for a quarry lease for a major mineral and the State Government was not competent to grant it, under the Rules. We do not think this view taken by the State Government and approved by the High Court is correct. It rests on too strict a construction of the application for renewal ignoring the substance of the matter. When column 6 of paragraph 3 of Form V requires an applicant to state the mineral which he intends to mine, it is for the purpose of intimating to the State Government as to what is the (Downloaded on 28/02/2022 at 08:41:15 PM) (11 of 25) [CW-12253/2019] mineral for which the quarry lease is applied for by the applicant. So long as the description given by the appellant against column 6 of paragraph 3 is sufficient to identify the mineral, the object of requiring the applicant to give information against column 6 of paragraph 3 would be satisfied and the application would not suffer from the fault of being vague or indefinite and the only question then would be whether the mineral mentioned there is a minor mineral. Here in the present case, against column 6 of paragraph 3 the mineral intended to be mined by the appellant was described as "limestone for burning as a minor mineral".
The words "as a minor mineral" following upon "limestone for burning" clearly indicated that the mineral which the appellant intended to mine was not "limestone for burning" which was a major mineral but "limestone for burning" which was a minor mineral, that is, "limestone used in kilns for manufacture of lime used as building material". It cannot be gainsaid that it would have been better if the full description of this mineral had been given against column 6 of paragraph 3, but absence of reiteration of the full description cannot be regarded as having any invalidating effect on the application for renewal. What was stated by the appellant against column 6 of paragraph 3 was sufficiently specific to identify the mineral as "limestone used in kilns for manufacture of lime used as building material", and that showed clearly beyond doubt that the application for renewal was an application in respect of a minor mineral. We are, therefore, of the view that the application for renewal was a proper application in respect of a minor mineral and the State Government was wrong in rejecting it on the ground that it was an application in respect of a major mineral."
14. Learned Senior Counsel further submits that the petitioner is the dominus litus and therefore cannot be forced to implead a party unless that party is held to be a necessary or proper party, and that the applicant is not a necessary or proper party by virtue of the fact that the previous round of litigation came to an end with the judgment rendered by the Hon'ble Apex Court in the SLP, being SLP No. 23311/2015 and that the facts and circumstances in (Downloaded on 28/02/2022 at 08:41:15 PM) (12 of 25) [CW-12253/2019] the previous round of litigation are materially different from that of those in the present case. And that, the direction so issued in the said judgment only kept alive the right of the petitioner while directing the that the status quo be maintained.
15. Learned Senior Counsel further submits that the application of the applicant cannot be considered as the mining lease in question was canceled and terminated, as is admitted by the applicant itself in the application so made. And that, the argument of the applicant is self contradictory and detrimental, and puts an end to its application for part transfer, and therefore, cannot be impleaded as a party now.
16. Learned Senior Counsel further submits that if the mining lease in question were to be auctioned, the contention of the applicant, that it would have a right to participate in the said auction is misconceived, as there could then be a large number of participants if the mining lease in question were to be auctioned.
And that, on such a hypothetical assumption on future prospect, every interested application cannot be made a party to the case.
And that, the lis in the present case lies between the petitioner and the State Government only.
17. Learned Senior Counsel, in support of the submissions so made, placed reliance on the following case laws:
17.1 Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. (2010) 7 SCC 417 wherein the Hon'ble Apex Court, at Paras. 15, 22 and 25, observed the following:
"15. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree (Downloaded on 28/02/2022 at 08:41:15 PM) (13 of 25) [CW-12253/2019] 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 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.
22. Let us consider the scope and ambit of Order 1 of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.
25. In other words, the court has the discretion to 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"
17.2 Vidhur Impex & Traders Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd. (2012) 8 SCC 384 wherein the Hon'ble Apex Court, at Paras. 27 to 33, and 44 observed the following:
(Downloaded on 28/02/2022 at 08:41:15 PM)(14 of 25) [CW-12253/2019] "27. Learned senior counsel for Respondent No. 1 relied on Surjit Singh v. Harbans Singh and argued that the Appellants are neither necessary nor proper parties because the agreements for sale and the sale deeds executed by Respondent No. 2 in their favour had no legal sanctity. Learned senior counsel submitted that the alienation of suit property by Respondent No. 2 in violation of the injunction granted by the Delhi High Court was nullity and such a transaction did not create any right in favour of the Appellants or Bhagwati Developers so as to entitle them to contest the litigation pending between Respondent Nos. 1 and 2. Learned senior counsel submitted that in a suit for specific performance, any transfer which takes place in violation of an injunction granted by the Court would be hit by the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act, 1882. Learned senior counsel further submitted that on the date of filing IA No. 1861/2008 the Appellants did not have any subsisting interest in the suit property because they had already executed an agreement for sale in favour of Bhagwati Developers and received substantial part of the consideration and the mere fact that they were made parties in the interlocutory applications filed before the Delhi High Court cannot entitle them to seek impleadment as Defendants in the pending suit. Learned senior counsel then argued that the agreement to sell executed between the Appellants and Bhagwati Developers and the proceedings instituted before the Calcutta High Court were collusive and fraudulent and the Appellants and Bhagwati Developers cannot take benefit of the order passed by that Court. He emphasized that even though the Appellants and Bhagwati Developers had knowledge of the suit pending before the Delhi High Court, they deliberately suppressed this fact from the Calcutta High Court and succeeded in persuading the Court to appoint an arbitrator and a receiver. Learned senior counsel submitted that the doctrine of comity of jurisdictions cannot be invoked by Bhagwati Developers because the Delhi High Court was already seized of the matter and the application filed by Respondent No. 1 for appointment of receiver was pending since 1998. Learned senior counsel lastly argued that the Delhi High Court did not commit any error by appointing a receiver because Respondent Nos. 2, 4, the Appellants and Bhagwati Developers (Downloaded on 28/02/2022 at 08:41:15 PM) (15 of 25) [CW-12253/2019] tried to grab the suit property by entering into clandestine transactions.
28. We have considered the respective arguments/submissions. The first question that requires determination is whether the Appellants are entitled to be impleaded as parties in Suit No. 425/1993 on the ground that during the pendency of the suit they had purchased the property from Respondent No. 2. Order 1 Rule 10(2) Code of Civil Procedure which empowers the Court to delete or add parties to the suit reads as under:
"10 (2) Court may strike out or add parties -The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name, of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
29. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, this Court interpreted the aforesaid provision and held: (SCC p.528, para 6) "6.Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the Plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. 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 on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case."
(emphasis supplied)
27. In Anil Kumar Singh v. Shivnath Mishra, this Court interpreted Order 1 Rule 10(2) in the following manner: (SCC pp. 149-50, para 7) (Downloaded on 28/02/2022 at 08:41:15 PM) (16 of 25) [CW-12253/2019] "7. By operation of the above-quoted rule though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party- defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.
31. In Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. (supra), this Court considered the scope of Order 1 Rule 10(2) Code of Civil Procedure and observed: (SCC pp. 422-23 & 425, paras. 13-15 & 22) "13. The general rule in regard to impleadment of parties is that the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ('the Code', for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
10. (2) Court may strike out or add parties. 'The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific (Downloaded on 28/02/2022 at 08:41:15 PM) (17 of 25) [CW-12253/2019] performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: ( a ) any person who ought to have been joined as plaintiff or defendant, but not added; or ( b ) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
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 dispute 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 court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure aright/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."
22. Let us consider the scope and ambit of Order 1 Rule 10(2) Code of Civil Procedure regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the Plaintiff or the Defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a Plaintiff or as a Defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.' (Downloaded on 28/02/2022 at 08:41:15 PM) (18 of 25) [CW-12253/2019] (emphasis supplied)
32. In Kasturi v. Iyyamperumal, this Court considered the question whether a person who sets up independent title and claims possession of the suit property is entitled to be impleaded as party to a suit for specific performance of contract entered into between the Plaintiff and the Defendant. In that case, the trial Court allowed the application for impleadment on the ground that respondent Nos. 1 and 4 to 11 were claiming title and possession of the contracted property and, therefore, they will be deemed to have direct interest in the subject matter of the suit. The High Court dismissed the revision filed by the appellant and confirmed the order of the trial Court.
33. While allowing the appeal and setting aside the orders of the trial Court and the High Court, this Court referred to Order 1 Rule 10(2) Code of Civil Procedure and observed:
(Kasture case, SCC pp.738-40, paras 7 & 11-12) "7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 Sub-rule (2) Code of Civil Procedure would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.
11. As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit (Downloaded on 28/02/2022 at 08:41:15 PM) (19 of 25) [CW-12253/2019] for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit.
The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker v. Small made the following observations: (ER pp. 850-51) "It is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the Defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.
12. The aforesaid decision in Tasker was noted with approval in De Hoghton v. Mone. Turner, L.J. observed:(Ch. p. 170) ' ... here again his case is met by Tasker in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed."
(emphasis supplied)
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17.3 Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors. (2012) 4 SCC 407 wherein the Hon'ble Apex Court, at Paras. 58 to 61, observed the following:
"58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lies. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.
59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lies. A fanciful or sentimental grievance may not be sufficient to confer a locus stand to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro rationed valuntas reasons i.e. a claim devoid of reasons.
60. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lies, as the person wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party. (Vide: Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of Maharashtra; Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and Ors.; Maharaj Singh v. State of Uttar Pradesh and Ors.; Ghulam Qadir v. Special Tribunal and Ors. ; and Kabushiki Kaisha Toshiba v. Tosiba Appliances Co.) The High Court failed to appreciate that it was a (Downloaded on 28/02/2022 at 08:41:15 PM) (21 of 25) [CW-12253/2019] case of political rivalry. The case of the Appellant has not been considered in correct perspective at all.
61. In such a fact-situation, the complaint filed by the Respondent No. 5 could at the most be pressed into service as a material exhibit in order to collect the evidence to find out the truth.In the instant case, as all the charges proved against the Appellant have been dealt with exclusively on the basis of documentary evidence, there is nothing on record by which the complainant could show that the General Body meeting was not called, as statutorily required, by the Appellant intentionally."
17.4 Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors (1992) 2 SCC 524 wherein the Hon'ble Apex Court, at Para. 18, observed the following:
"18. The courts below have assumed that the subject- matter of the litigation is the structure erected by the respondent or in other words the service station which has been allowed to be operated upon by the plaintiff under the terms of dealership agreement. The notice does not relate to that structure but is in relation to the two chattels stated to have been erected by the present appellant unauthorisedly. According to the appellant these chattels/structures are moveables on wheels and plates where servicing and/or repairs are done and used for storing implements of the mechanics. The second respondent has no interest in these chattels and the demolition of the same in pursuance to the notice is not a matter which affects the legal rights of the respondent. The courts below, therefore, failed to note that the second respondent has no direct interest in the subject-matter of the litigation and the addition of the respondent 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 is required to be adjudicated and settled. By the joining of the party would embarrass the plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the Rule in such cases."
(Downloaded on 28/02/2022 at 08:41:15 PM)(22 of 25) [CW-12253/2019] 17.5 Gurmit Singh Bhatia Vs. Kiran Kant Robinson & Ors (2020) 13 SCC 773 wherein the Hon'ble Apex Court, at Para.
5.4, observed the following:
"5.4 In the aforesaid decision in the case of Kasturi (supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the Plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself.
It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party Defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property."
18. Learned Senior Counsel also submits that the applicant's application for part transfer of the mining lease in question, was already rejected by the State Government (through the Director, Mining Department) on 11.09.1997, on the ground that there was no ground for part transfer of a mining lease. And that, the State Government chose not to relax Rule 65 of the Rules of 1986, which would permit the same. And that, the petitioner chose not to transfer part of the mining lease in question, owing to the decision so taken by the State Government. And that, Rule 65 of the Rules of 1965 has already been deleted from the statute book by the State's notification dated 03.03.2013 and no similar provisions exists under the Rules of 2017.
19. Learned Senior Counsel finally submits that, in light of the aforementioned submissions, the applicant's application be rejected by (Downloaded on 28/02/2022 at 08:41:15 PM) (23 of 25) [CW-12253/2019] this Court as the applicant has no right in the mining lease in question, and is only intending to interfere with the rights of the petitioner.
20. Heard learned counsel for both parties, and, perused the record of the case and the judgments cited at the Bar.
21. This Court observes that the contention of the petitioner, that the applicant, if the auction process for the mining lease in question has to be held afresh, would be situated similar to other applicants, is not accepted by this Court. As the applicant's right is already intertwined with the right of the petitioner, with respect to the mining lease in question. The law laid down under Order 1 Rule 10 CPC stipulates that a necessary or proper party, may be added to a suit, at any stage of the proceedings, with or without an application made by such party, and if the Court deems it just.
22. The Court observes that the contention of the petitioner, that the impleadment of the applicant as a party to the said case would prejudice the rights of the petitioner, with respect to the mining lease in question, is not accepted. The joinder of the applicant as a party does not and would not adversely affect the petitioner, but in fact would enable the Court to adjudicate both claims, that of the petitioner and the applicant effectively.
23. This Court observes, that although the mining lease in question stood terminated and cancelled vide the aforementioned judgment rendered by the Hon'ble Apex Court in SLP No. 23311/2015, but the Hon'ble Court held that, "The State of Rajasthan may within one month thereafter pass an appropriate order in respect of the mining lease in question in the light of the policy so framed. Till such a decision is taken, status quo may be maintained."
24. This Court observes the judgment rendered in R. Dhanasundaru (supra) wherein it was held that the object of Order 1 Rule 10 of the CPC, 1908 was to ensure that all parties, who are (Downloaded on 28/02/2022 at 08:41:15 PM) (24 of 25) [CW-12253/2019] parties to the dispute, are brought on record so that the dispute may be determined in their presence, so as to avoid multiplicity of litigation.
25. This Court observes the ratio decidendi laid down in Prabodh Verma (supra) wherein the Hon'ble Apex Court has held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment.
26. This Court observes the ratio decidendi laid down in Udit Narain Singh (supra) wherein the Hon'ble Apex Court, regarding what would constitute a necessary and proper party, observed that a necessary party is one without whom no order can be made effectively; 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 on the question involved in the proceeding.
27. This Court is of the opinion that if prayer (i) of the writ petition (CW No.12253/2019) alone was there, the right of the applicant to become a party would have become a contestable right, but since prayer (ii) has been incorporated in the writ petition, which pertains to relief to the effect that "the respondents be directed to treat the period from the date of determination of the mining lease i.e. 16 th December, 2014 till such time that the possession of the mining lease is handed over to the petitioner as Dias-Non", the same leaves no space for this Court to exclude the applicant from the adjudication.
The scope of the prayer (ii) virtually connects the present controversy with the previous controversy, which was adjudicated by the Hon'ble Single Bench & Hon'ble Division Bench of this Court as well as by the Hon'ble Apex Court in a chronological order, and the applicant was permitted to be arrayed as a party.
(Downloaded on 28/02/2022 at 08:41:15 PM)(25 of 25) [CW-12253/2019] 27.1 For ready reference Prayers (i) & (ii) made in the writ petition being SBCWP No.12253/2019, wherein the application under consideration was being preferred, read as follows:
(i) by issuance of a writ of certiorari or any other appropriate writ, order or direction in the nature thereof, the Impugned order dated 28th November, 2017 passed by the Dy. Secretary, Mines (Gr. 2) be quashed and set aside and declared null and void.
(ii) by a writ of mandamus or any other appropriate writ, order or direction in the nature thereof, the respondents be directed to consider transfer the mining lease in question in favour of the petitioner. Further, the respondents be directed to treat the period from the date of determination of the mining lease i.e. 16th December, 2014 till such time that the possession of the mining lease is handed over to the petitioner as Dias-Non.
Further, the respondents be directed that the said period also be excluded for calculation of the period of the mining lease."
27.2 The root of the controversy going there leaves no room for this Court to leave out the present applicant. The elaborate adjudication to be made would require the assistance of the present applicant and the precedent law cited on behalf of the petitioner thus would not apply to the present facts and circumstances, so far as impleadment of the present applicant is concerned.
28. This Court also takes note of the fact that in the previous round of litigation before the Hon'ble Courts, a similar situation arose wherein the applicant was impleaded as a party.
29. In view of the above, the application preferred by the applicant under Order 1 Rule 10 CPC is allowed, and the applicant is impleaded as party respondent in the above numbered S.B. Civil Writ Petition No.12253/2019.
(DR.PUSHPENDRA SINGH BHATI),J.
SKant/-
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