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Gujarat High Court

The Jodiya Kheralu Dudh Utpadak ... vs State Of Gujarat on 30 December, 2020

Author: Sonia Gokani

Bench: Sonia Gokani

                               C/SCA/16464/2020

                                  IA ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD




        CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
           In R/SPECIAL CIVIL APPLICATION NO. 16464 of 2020
==========================================================

SHRI FATEHPURA MILK PRODUCERS COOPERATIVE UNION LTD Versus THE JODIYA KHERALU DUDH UTPADAK SAHAKARI MANDLI LIMITED ========================================================== Appearance:

MR PK JANI, SR. ADVCOATE, MR SHIVANG P JANI for the PETITIONER(s) No. MR MIHIR JOSHI, SR. ADVOCATE, MR. DIPEN DESAI, for RESPONDENT (S) 1 MR KAMAL TRIVEDI, ADVOCATE GENERAL, MR UTTKARSH SHARMA, AGP for RESPONDENT (S) ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI Date : 30/12/2020 IA ORDER Rule. Learned Advocate, Mr. Dipen Desai, waives service of rule for the opponent-Society and the learned AGP, Mr. Uttkarsh Sharma, waives for the respondent-State.

1. This is an application preferred by the applicant-third parties, where, applicant No.1 is Shree Fatehpura Milk Producers Cooperative Page 1 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER Union Limited, Village: Fatehpura, Taluka: Kheralu, and is a member of the federal society named as Mehsana District Cooperative Milk Producers' Union Limited, whereas, applicant No.2 is nominated as the representative of Shree Fatehpura Milk Producers Cooperative Union Limited to vote in the ensuring elections of the Mehsana District Cooperative Milk Producers' Union Limited. Applicant No.2 is authorized to vote and contest the election of the post of the committee member and the nomination is filed by Applicant No.2 for contesting the election and the record of nomination form is also enclosed with the said application.

2. It is the say of the applicants that opponent No.1-the Jodia Kheralu Limited Society's name is shown as voter, at Sr. No. 101, into the same constituency, where, applicant No.1 is a member. Applicant No.2 has also registered objections to the nomination form filed by Mr. Vipul Mansingbhai Chaudhary, who is authorized by opponent No.1; on the ground that Mr. Vipul Chaudhary is not eligible to contest the election. The applicant No.2 has registered these objections on 21.12.2020.

3. On the ground that Mr. Chaudhary is not the resident of Village:

Jodia, Taluka: Kheralu, it is objected that opponent No.1 has made him a member to facilitate him to contest the election from Kheralu seat. It is, further, urged that opponent No.1-Society is not possessing audit Class- A, as per the information of the applicants. It is averred that as per by- laws No.48(2)(A)(2)(Z) of the Mehsana District Cooperative Milk Producers' Union Limited, i is necessary for the Society to possess Class- A or Class-B for its nominee to be eligible to contest election. According to the applicants, the outcome of this writ-petition would have a direct effect on the objections submitted by applicant No.2, against the nomination of Mr.Chaudhary. The applicant's say is that as per the by-
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C/SCA/16464/2020 IA ORDER laws No. 48(2)(A)(2)(Z), a Member Society, who has audit Class-C and D, cannot send its representative as a candidate to contest the election. Therefore, the applicant is a necessary and a proper party, inasmuch as, the outcome of this application would straightaway affect the applicants. An oral request had been made by the applicant, before this Court, for providing the hearing with an undertaking to file a civil application, as applicant No.2 was required to remain present for registering the objections.

4. According to the applicants, they have no other equally efficacious, alternative and speedy remedy, save and except, by way of this application, and therefore, they have prayed for the following reliefs:

"15. ...
(A) This Hon'ble Court may be pleased to allow this Civil Application and / or;
(B) That, this Hon'ble Court may be pleased to allow the applicants to be party respondents Nos. 6 and 7 in Special Civil Application No. 16464 of 2020 and/0r;
(C) Pending, hearing and final disposal of this Special Civil Application, This Hon'ble Court may be pleased to allow the applicants to be joined as parties and allow the applicants to participate in the proceedings of the Special Civil Application No. 146464 of 2020 and / or; 
      (D)     ..."
      "
5. Affidavit-in-reply on behalf of opponent No.1 is filed, where, the Secretary of opponent No.1-Mr.Madhu Revabhai Chaudhary has Page 3 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER affirmed on oath and stated that all the averments and contentions raised in the civil application, unless admitted, are denied in toto. It is urged that the application is not maintainable and the applicants have no locus standi to prefer the present application. They are neither necessary nor proper parties, and therefore, they would have no right to be joined in the petition.

5.1 It is, further, averred and contended by opponent No.1 that this application is a dishonest attempt on the part of the applicants, in collusion with the state authorities, to further their ill-design to ensure that the nomination form of the delegate of opponent No.1-Society is not accepted and he is not allowed to contest the election, anyhow. It is also the say of the opponent that the present application is another attempt to further the intention of dispensation of the State Government to oust the delegate of opponent No.1-Society.

5.2 It is the say of the opponent that the main petition is mainly with regard to the issue of audit classification and whether, the audit, in fact, has been completed of the opponent-Society or not. When the issue, in the main petition, is for conducting audit and audit classification, there is no role of the present applicants in the said petition, and therefore, they are neither necessary nor proper parties. It is, further, contended that there is no right; much less any legal right of the applicants which is violated or is sought to be violated or infringed in any manner, and therefore, the applicants cannot be said to be necessary or proper parties. It is also, further, contended that the last moment collusion of the applicants with the State officials, without the knowledge of the Society, of giving audit Class-C to the opponent is with a sole motive to disqualify the delegate of the said Society from contesting the election so that they Page 4 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER are not left with any time to challenge the classification and there is a situation of fate accompli. It is also, further, the say of the opponent that in Siddhpur and Unjha constituency, there are many more delegates of four societies, which have been given the audit Class-C, at the last moment, with a view to disqualify the said person from contesting the elections. In the said four cases, either the audit class certificate is given after the filing of the nomination form or the certificate is not supplied, till date.

5.3 Another important aspect, according to the opponent, is that there are more than 30 societies, which are the supporters of the delegate of the opponent-Society, Shri. Vipulbhai Chaudhary, are given either Audit Class-C so that their delegate cannot contest the election or are given Audit Class-D so that the societies become ineligible to vote. This has happened at the last moment so that the Society has no time to challenge the same. All these societies had Audit Class- A or B, since, last more than five years and although, there is no change of account or working of the Society, the audit class is degraded only with a view to see that the Society cannot contest or vote in the election of the Union.

5.4 It is, therefore, urged that the impugned action on the part of the State is an example of high handedness and mala fide to oust the delegate of opponent No.1-Society in completely illegal manner.

5.5 It is, further, the say of the opponent that the delegate of the opponent-Society has been disqualified earlier. However, his disqualification has been stayed by the Tribunal and the interim order is operating, and therefore, as such, there is no disqualification nor are any other disqualification incurred by the delegate of opponent No.1-Society, Page 5 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER except, the action of awarding Audit Class-C, which is clearly illegal, mala fide and abuse of process of law. Therefore, it is urged that the application is misconceived and baseless and deserves rejection.

6. This Court has heard, at length, learned Sr. Advocate, Mr. Prakash Jani, appearing with learned Advocate, Mr. Shivang P. Jani, who has argued along the line of the contents of the application and has urged that 21st December, 2020, was the day of scrutiny. The legislature has already decided, as to what are the qualifications for the delegate of the society, when they contest for the post of Committee Member of Mehsana District Cooperative Milk Producers Union Ltd.. It is, further, urged fervently that there are various decisions to substantiate the say of the applicants that they are not only proper parties but also necessary parties, since, any decision of the main petition will have a direct bearing on the nomination of the delegate of the opponent-Society, the candidate, whether is a validly nominated or not, shall be decided by addressing the issues raised in the main petition, and therefore, the present applicants are, both proper and necessary parties. Learned Sr. Advocate, Mr. Jani, has also relied on the decision rendered 'THE VISNAGAR TALUKA COOPERATIVE PURCHASE AND SALES UNION LTD. VS. STATE OF GUJARAT', 2020 JX (Gujarat) 208, 'ULAGAPPAU VS. DIVISIONAL COMMISSIONER, MYSORE', (2001) 10 SCC 639 and the decision reported in 2018 JX (Gujarat) 172, in case of 'BHUPENDRASINH VECHATBHAI KHANT VS. VIRKAMSINH RAMSINH DINDOR'.

6.1 Learned Sr. Advocate, Mr. Jani, has urged that, where, the aggrieved person is the one, who suffers legal injury, which means that the prejudice is caused to the legal rights. The applicant, as an applicant and as a candidate, would have legal status, when a person, who is not Page 6 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER eligible to contest the election, is permitted to contest the same. He, therefore, urged that a person, having sufficient interest, would surely be entitled to make an application, when the injury or prejudice is caused to him by violation of some of the provisions of the Constitution. According to him, even though, the petitioner is a dominos litus, who cannot be compelled to make any third person a party, against his wish , but if, the third party approaches the Court and is able to prove that it is necessary party, without whose presence the suit cannot be proceeded, let the same be decided effectively. For the effective decision of the matter, such a party needs to be joined.

6.2 It is argued by the learned Sr. Advocate, Mr. Jani, that 21st December, 2020 was the day of scrutiny. Rule 23 of the Gujarat Specified Cooperative societies' election to Committee Rules, 1982, provides for scrutiny of nomination papers. Sub-rule (3) of rule 23 and sub-rule (6) of rule 23 are pressed into service to urge that mechanism of scrutiny of nomination papers would entitle the applicant to have the nomination of a candidate rejected, if, it does not conform to the law, rules and by laws. According to him, section 145F of the Gujarat cooperative societies Act provides for criterion of disqualification for membership, as a candidate is required to fulfill certain criteria and this concerns the individual qualifications. Rule 32 of the Gujarat cooperative Societies' Rules, 1965, provides for qualifications of the members of the committee, one of them is that he is not held responsible under section 82 of the Act. He urged that the threshold requirements are the requirements at the time of filling nomination form. The qualification of a society and of individual, both as per the bylaws of 48 of the Mehsana District Milk Producers' Union Limited also would need to be regarded and since; there is no decision of the election officer as to whether, the delegate or nominee of the Society, i.e. Mr Vipul Chaudhary, is qualified or not due to pendency of Page 7 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER this petition, the outcome surely concerns the applicant and therefore also, he is both, a necessary and proper party. According to him, the prayers at Paragraphs-6B and 6D would have a direct bearing on the issue raised by the applicant before the election officer.

7. Learned Sr. Advocate, Mr. Mihir Joshi, appearing with learned Advocate, Mr. Dipen Desai, has also argued along the line of affidavit-in- reply and has urged that no third party can be permitted to be joined as the third party, as the issue before this Court in the main petition is of disqualification of the Society, which is not within the realm of the Election Commission. The classification dispute cannot be addressed by the Election Commission and he has relied on the decision of this Court rendered in case of 'SIYANAGAR DUDH UTTPADAK SHAKARI MANDLI LIMITED VS. ELECTION OFFICER & DIRECTOR', in Special Civil Application No. 12731 of 2018 (Coram: Ms. Bela M. Trivedi, J.) 12.09.2018. He also alleged how the present applicant is a stooge in the hands of the authorities whose action lacks bonafides. He also urged as to how with an ill design, attempt is made to broaden the scope of this applicant being fully conscious as to what in fact is the scope of the main petition and absence of any role of the applicant herein.

8. In rejoinder, learned Sr. Advocate, Mr. Jani, has urged that since, it concerns the constituency of Kheralu and it directly affects the rights of the applicant, as to whether the candidate of opponent No.1 is validly nominated or not, would have a bearing on the issue, they should be impleaded as party respondents in the main matter which itself is unsustainable.

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C/SCA/16464/2020 IA ORDER

9. Taking, firstly, the law on the subject, as has been laid down in 'VISNAGAR TALUKA COOPERATIVE SALES AND PURCHASE UNION LTD.' (Supra), the Court has culled out a distinction between a proper and necessary party to hold that what is needed to be appreciated is that a proper party may not be necessary party, but, whose presence would enable the Court to completely, effectively, duly and adequately adjudicate the dispute. The Court also has held that a necessary party is a person, who ought to have been joined as a party, in whose absence, no effective decree can be passed at all by the Court. If, the necessary party is not impleaded, the Suit, itself, will be liable to be dismissed, whereas, a proper party, who, though, is not a necessary party, is a party, whose presence would enable the Court to completely and effectively adjudicate upon all the matters within the suit. Although, he need not be a person in dispute, against whom the decree is to be made. This, further, states that, if, a person is not found either a necessary or proper party, the Court has no jurisdiction to implead such a person, against the wish of the plaintiff.

"10. At the first blush Mr.Jani's submission would be attractive to suggest that since respondent nos.6 to 13 are not members of the society, they have no locus to file an application for being impleaded as party respondents in Revision Application No.20 of 2020. That in view of the decision of the Supreme Court in case of S.S. Rana (supra) and Thalappalam Ser. Co-op. Bank Ltd. (supra), since the rigors of the State and public authority do not apply to a cooperative society, the applicants being outsiders have no role to play. With respect, I would disagree with the submissions of Mr.Jani on the ground that when the provisions of Section 84(5) of the Cooperative Societies Act are read, assuming for the sake of argument that the respondent nos.6 to 13 are not members of the society, reading of their application indicates that they are members of Shri Rangpur Seva Sahakari Mandli Limited-a cooperative society which is a primary member society of the petitioners and therefore they have an indirect but a substantial interest in the functioning of the petitioner society. Perusal of sub-section (5) of section 84 of the Act makes it clear that the registrar on an application or otherwise, get the account of the society re- audited, that is no qualification as to the Page 9 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER eligibility of a person who can make an application for audit in the facts of the C/SCA/5786/2020 JUDGMENT present case. Admittedly, it may not be said that respondent nos.6 to 13 who made an application can be said to be rank outsiders so as to not merit participation in the proceedings i.e. in the revision proceedings being Revision Application No.20 of 2020.

11. It is in this context, the decision rendered by the Division Bench of this Court in Letters Patent Appeal No.644 of 2016 needs to be considered. Though it was in the context of an application filed by a member in the facts of that case, while discussing the concept of what a necessary and a proper party is in the context of Section 84(5) of the Act, the Division Bench considered the decision of the Supreme Court in case of Mumbai International Airport Private Limited v. Regency Convention Center and Hotels Private Limited and others reported in (2010) 7 SCC 417. It will be in the fitness of things to reproduce paragraphs 9 to 11 of the decision of the Division Bench. The pragraphs 9 to 11 read as under:

"[9] Powers under section 84(5) of the Act, 1961 can be exercised by the authorities suomoto or on an application submitted by the party. In the present case, respondent authority has not exercised said power on its own but same has been exercised at the instance of the appellant. The appellant has already paid audit fees of Rs.52,000/. Thus, the appellant being member of respondent no.4 - society and at whose instance powers are exercised by respondent authorities and when specific allegations are leveled against the appellant by name, we are of the view that the appellant can be said to be necessary and proper party to the proceedings.
[10] In the case of Mumbai International Airport C/SCA/5786/2020 JUDGMENT Private Limited v/s. Regency Convention Centre and Hotels Private Limited and Others reported in (2010) 7 SCC 417, the Hon'ble Apex Court has held in paragraph nos.15 and 25 as under :"
"15. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need Page 10 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER 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." "25. In other words, the court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party."

[11] In the case of State of Asasm v/s. Union of India and Others reported in 2011 AIR SCW 3724, the Hon'ble Apex Court has observed in paragraph no.14 as under :"

"14. We respectfully agree with the observations made by this Court in Udit Narain's case (supra) and adopt the same. We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding."

12. Discussing the concept of a 'necessary party' and a 'proper party', what is needed to be appreciated is that a proper party is a party though it may not be necessary party, but is one whose presence would enable the Court to completely, effectively and adequately adjudicate the dispute. This can be viewed in context of the averments made by the petitioner in the memo of the Revision Application. Though the order of re-audit dated 29.01.2020 is directly a subject matter of challenge in such revision, one of the root causes of such a challenge is the authority of the Registrar to pass such an order based on an application made by the respondent nos.6 to 13. It is a specific contention by the petitioner before the Revisional Authority about the locus of the applicants/respondent nos.6 to 14, I would agree with the submission of Shri Desai that this submission can best be answered by the applicants who have been joined as parties in the revision proceedings.

13. There is one more reason why I am inclined to accept the order of the authority dated 02.03.2020 by which the respondent nos.6 to 13 have been impleaded as party respondents. The intention that the applicants/respondent nos.6 to 13 be heard is implicit in view of the order passed by this Court in Special Civil Application No.4764 of 2020 dated Page 11 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER 20.02.2020. Para 2 of the said order reads as under:

"2. On a broad consensus, it is agreed that the Revision Application which is now scheduled to be heard on 02.03.2020 will be preponed to be heard on 27.02.2020 and on that day, the revisional authority shall take into consideration all the contentions raised by parties concerned. All the parties concerned shall co-operate with the hearing C/SCA/5786/2020 JUDGMENT before the revisional authority. In the meantime, statement is made on behalf of the learned Government Pleader that the auditor- respondent No.4 will not proceed ahead with the procedure of auditing of the petitioner union. The statement of the learned Government Pleader will continue to operate till the final decision of the Revision Application No.20 of 2020."

Ratio of this decision would be duly regarded hereinafter while adverting to the facts of the instant case.

9.1 This Court in Civil Application No. 1 of 2020 in Special Civil Application No. 9287 of 2020, Dated: 06.11.2020, was considering the question of impleading the party, as a party respondent. The applicants' were the elected members of the Mehsana District Cooperative Milk Producers' Union Limited, in an election. The main petition was filed by the opponents in that matter, in their capacity as the elected members of the opponent-Union. As the status of the applicants and the opponents was one and the same, the applicants had urged that they would be vitally interested in the subject-matter. The subject-matter of the petition was the show-cause notice, issued under Section 81 of the Gujarat Cooperative Societies Act, on the ground that the applicant would be interested in the outcome of the petition, it had sought to join itself as the party-opponent. The notice was issued for alleged wrong doing of the opponents. Reliance was also placed on the decision of the Apex Court in case of 'BELARUS VS. P. CHELLATHANGAM, (2015) 13 SCC 579. The Court noticed that the notice was issued in relation to the gross misconduct to the extent of Rs.40/- crore unauthorized payment, by paying the double salary to the employees, with mala fide action and unauthorized recruitment of the employees in breach of the relevant Page 12 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER rules. These issues were raised by the applicants before the concerned authorities and they were virtually complainant, on the basis of which the show-cause notice had been issued.

In this background, the Court permitted the parties to be impleaded as the party opponents and when it was challenged before the Apex Court by way of Special Leave Petition (Civil Diary) No. 11065 of 2020, the Apex Court declined to interfere in the SLP and the same was dismissed.

There was, yet, another application moved for review of the said order being Misc. Civil Application No. 2 of 2020 in Special Civil Application No. 9287 of 2020. The applicants were the original petitioners, who sought review on the ground of judgment cited by the applicants not having been considered. The Court did not entertain such application and had held that not only they have interest in the subject matter, as they were one of the noticees, which were subject matter of challenge and there was no prejudice being caused to the applicants original petitioner, in case the opponents are joined as the party respondents.

If the said decision is closely examined, the complainants were the members themselves of the very cooperative society and were the whistleblowers at whose instance, the show cause notice was initiated and therefore,in the given set of facts, their inclusion was inevitable not only as proper parties but also as necessary parties.

9.2 In case of 'CHIMANBHAI DEDUBHAI DESAI VS. CHHOTUBHAI PATEL, DISTRICT REGISTRAR COOPERATIVE SOCIETIES', (1970) 1 GLR 31, the question which was for consideration before the Court was, whether revision application lies under Section 155 against an order made under Section 86(1), as Section 155 conferred the revisional Page 13 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER powers to the State Government and the Registrar, which may call for examination of the record of any inquiry or proceedings of any other matter or any officer, sub-ordinate to them, except, those referred to in sub-Section (9) of Section 155 for the purpose of satisfying themselves of the legality and propriety of any decision or order passed and as to regularity of proceedings of such officer. The Court after analyzing the provisions and the facts on hand, held that the Joint Registrar and Appeal was in error in taking the view that no revision application lay against the order of District Registrar, ordering an inquiry under Section 86(1) and had wrongly refused to exercise the jurisdiction vested in him under sub- Section (1) of Section 155.

This authority for present would not be deciding the issue raised in this application but addresses the merit of main matter and hence, deserves no elaboration.

9.3 In 1985 GLR 787, in case of 'HARGOVINDBHAI PATEL VS. LANVA DUDH UTTPADAK COOPERATIVE SOCIETY LTD.', the question again was of Section 155 of the Gujarat Cooperative Societies Act and the Power of Revision, where, the Court held that the Registrar as well as the government entrusted with the said powers and the Joint Sub-Registrar is obviously an officer sub-ordinate to the government, when the officer exercises the powers vested in him, it is within the competence of the State Government to revise the same. It was contended by the petitioner that the powers of the Government and the powers of the Registrar under Section 155 are co-extensive and once the powers are exercised by the Registrar or the Joint Registrar, the State Government cannot exercise such powers and the Court held that the language of Section 155 does not support these reasoning.

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C/SCA/16464/2020 IA ORDER 9.4 In case of 'ULAGAPPU' (Supra), the Apex Court was considering the effect of issuance of a notification under Section 349 read with Section 4 of Karnataka Municipality Act, proposing to include certain areas within the panchayat. There was a challenge to the legality of the said notification by the residents of the local area, by preferring a petition under Article 226 of the Constitution of India. The High Court dismissed the petition, holding that there was no final notification, consequent upon the said notification, and therefore, the writ-petition filed was pre-mature. The Apex Court held that the High Court erred in entertaining the petition, as none of the rights of the petitioners were affected.

9.5 In case of 'BHUPENDRASINH VECHATBHAI KHANT' (Supra), an appeal was preferred under Clause 15 of the Letters Patent Appeal against the judgment and order of the learned Single Judge, whereby, the Court had allowed the application for joining as party respondent. The appellant was the original petitioner, who had challenged the cancellation of the caste-certificate issued by the competent authority in his favour. The petitioner had not joined respondent No.1 as the party respondent, and therefore, he had filed a civil application for joining a party in the main petition, which was allowed and therefore, the appellant-petitioner was aggrieved. Considering the rival contentions of the parties and the material, which had been brought on the record, the Court noticed that the appellant and the respondent both had contested the election of Legislative Assembly of a particular constituency and the said seat was reserved for the Scheduled Tribe candidate and the in the said election the appellant was declared elected. At the time of the scrutiny of the Nomination Form, respondent No.1 took objection before the returning officer about the validity of the caste certificate of the appellant-petitioner. However, the same was not decided by the Returning Officer. Therefore, a representation was made before the respondent-authority, alleging that Page 15 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER the caste certificate issued in favour of the appellant-petitioner was false and the appellant did not belong to the Scheduled Tribes category. Similar representation was also received by the respondent-authority in the past. An inquiry was conducted by the respondent-inquiry committee and during the inquiry, representation of the petitioner was considered and name of the respondent was referred at various places. There was a challenge to the said order. The respondent-applicant was not joined as party respondent in the main petition. Earlier, another petition was also filed before the Court and there the respondent was joined as the party respondent. The said petition was allowed by the Court and the matter was remanded to the respondent-authority to consider the matter, afresh. Thereafter, the respondent had submitted the representation before the respondent-authority Committee and after considering the material, it had passed order, which was challenged by the petitioner, where, the respondent-applicant was not joined as the party respondent. In these facts and circumstances of the case, the question that culls down is, whether, the respondent suffered any legal injury or he can be said to be an aggrieved person or not or whether, he can be said to be a necessary and proper party to the proceedings. The Court relied on various decisions and held that a legal right means an entitlement, arising out of the legal rules and the expression 'person aggrieved' does not include a person, who suffers psychological or any imaginary injury, but, a person must necessarily be the one, whose rights or interest adversely affected or jeopardized by the act.

9.5.1 The Court also, in detail, examined the distinction between the necessary and the proper party, referring to the decision in 'MUMBAI INTERNATIONAL AIR PORT PVT. LTD. VS. REGENCY CONVENTION CENTRE & HOTELS PVT. LTD. & OTHERS', reported in (2010) 7 SCC 417, and other decisions that a necessary party is a person, who ought Page 16 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER to have been joined as a party, in whose absence, no effective decree can be passed at all and a suit, itself, will be liable to be dismissed, whereas, a proper party, who, though, is not a necessary party, is a person, but, whose presence would enable the Court to completely, effectively and adequately adjudicate upon all the disputes in the suit. Although, he need not to be a person in whose favour or against the decree is to be made. The Court considered respondent No.1 before it as a necessary party for the complete and final decision of the question involved in the petition, pending before the learned Single Judge and accordingly, had directed him to be impleaded as a party.

10. It is, thus, clear from the law, which is discussed above, that the applicant has approached this Court, claiming itself to be an aggrieved person, who would suffer a legal injury and the serious prejudice to the legal right of its, if, the adjudication is made in respect of the classification of the class of the society, on the ground that the applicants are respectively the society and the contesting representative of the society and any outcome of the petition is going to have a bearing on the election, which is scheduled on 05.01.2021. it is also the say of the applicants that the applicant is not only a proper party but also a necessary party in whose absence, no effective order could be passed by the Court and even if, the Court holds it as a proper party, then also, for completely, adequately as well as effectively adjudicating the matters in dispute in the petition, their presence is must. In the decision of 'BHUPENDRASINH VECHATSINH KHANT' (Supra), there is a reference of the decision 'AYAAUBKHAN NOORKHAN PATHAN VS. STATE OF MAHARASHTRA', (2013) 4 SCC 465, where, the Supreme Court in no unclear terms has held that settled legal position is that a stranger cannot be permitted to meddle in any proceedings, unless he satisfies the Court that he falls within the category of aggrieved persons. Those persons, Page 17 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER who suffer from legal injury, can challenge an order in a Court of law. There has to be a judicially enforceable right available for enforcement, on the basis of which the writ jurisdiction can be resorted to. The existence of such a right is a condition precedent for invoking the writ- jurisdiction. In case of 'KANAKLATA DAS & OTHERS VS. NABA KUMAR DAS & OTHERS ', (2018) 2 SCC 352, also it is held that the plaintiff is a dominus litus, who would not be compelled to make any third person a party to the Suit, be that a plaintiff or a defendant, against his wish. Unless, such a person is able to prove that he is a necessary or proper party and without his presence the suit neither can be proceeded nor can be decided, effectively. Therefore, it is utmost necessary for the party concerned to prove that either he is a necessary party to the litigation and without his presence, the matter neither can be proceeded with nor could be decided or if, not a necessary party, he being a proper party, in his presence, effectively and adequately as well as completely, the matter could be decided and adjudicated, even though, there is no need for any decree or judgment in his favour or against.

11. As can be seen from the application, itself, the applicant No.1 is applicant No.1 is Shree Fatehpura Milk Producers' Cooperative Union Limited and it is a member of the federal society named as Mehsana District Cooperative Milk Producers' Union Limited and applicant No.2 is nominated as the representative of Shree Fatehpura Milk Producers' Cooperative Union Limited to vote in the ensuring elections of the Mehsana District Cooperative Milk Producers Union Limited. Applicant No.2 is authorized to vote and contest the election of the post of the committee member and the nomination is filed by Applicant No.2 for contesting the election and the record of nomination form is also enclosed with the said application. Shree Fatehpura Milk Producers' Cooperative Union Limited is one of the voters and is listed at Sr. No. 41 and applicant Page 18 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER No.2 is the representative of applicant No.1, who is authorized to vote and contest the election for the post of the committee member. It is not in dispute that Applicant No.2 has filed his Nomination Form for contesting the election, as the Committee Member. On the ground that applicant No.2 has registered objections to the Nomination Form filed by the authorized representative of opponent No.1, Mr. Vipul Chaudhary, and objection having been registered on 21.12.2020, it insist that it has a legal right and is a necessary as well as proper party. Various grounds are raised, including the ground of Mr. Vipul Chaudhary's residence not being Village: Jodia, Taluka: Kheralu, and other contentions.

11.2. The present application is preferred in the main petition which is, as mentioned above, by the opponent society (original petitioner) challenging classification and the conduct of the authorities which is alleged to be contrary to law and not bona fide. As rightly pointed out by the opponent and original petitioner that so far as the audit classification is concerned, the applicant objector has no locus standi at all. He is not a member of the society which is before this court unlike in a matter reported in 2018 JX 1 72. Any dispute which is raised before this court is between the petitioner society and the state and hence, the applicant which is the third party by no stretch of imagination can be said to have any locus. It is true that because of the bylaws of the specified society, the consequence of the classification directly affects the delegate of the society. In other words, the society would not be in a position to send its delegate to stand for election when there is a disqualification of the society and thus, so far as the delegate of the society is concerned. he may not have an independent right and his fate is tagged with that of the society. The issue of classification of the society is already under challange before this court as the disqualification is attached as a matter of bylaws. The objection is of course raised by the present applicant in Page 19 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER relation to the candidate of the society which is being classified as C class in the objection raised before the election officer, with other issues under section 23 and section 82 of the act ,the matter being sub-judice, the outcome would bind one and all, however, the court is of the firm opinion that the issue of classification is between the society and the state strictly and the third party has absolutely nothing to do with this issue as it is surely not an issue which cannot be decided in its absence as in case of a necessary party nor can it be said an issue which can be decided completely,effectively and adequately upon all matters in presence of the present applicant. And hence, the applicant is also not a proper party considering it from the legal point of view also.

11.3 To reiterate, the issue in the main petition is, essentially, as noted above, with regard to the conduct of audit and audit classification. The consequential effect of such classification is, of course, upon the right to contest election by Mr. Vipul Chaudhary, who has been nominated as the representative of the opponent No.1-Society. It is alleged in the main petition that the State authority has, at the last minute, given audit Class- C to the disqualify the delegate of the opponent-Society from contesting the election so that they are left remediless. It is also alleged that the societies, which are supporting the candidate of opponent No.1-Society, have been given audit Class-C or D so that their delegates cannot contest or vote. However, even if, the applicants have questioned, challenged and objected to the nomination filed by the opponent, Mr. Vipul Chadhary, as an authorized nominee of the opponent-society that would neither make the petitioner a necessary party, without whose presence, the adjudication cannot take place nor would their presence be necessary for they being the proper parties, in whose absence, adequately and aptly, the adjudication cannot take place. There may be other contestants also and the possible fallout and consequence of the Page 20 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020 C/SCA/16464/2020 IA ORDER decision of the Court may have a bearing on the ensuing elections. However, that cannot be determinative of the present applicant being construed either a proper or necessary party. The right, which is claimed to be affected, although, presently is not at all affected and even if, at a future date, the same results in to a contest or a fierce contest of election in a democratic set-up that would not make the present petitioner, in any manner, a party, in whose presence, the main petition should be adjudicated.

11.4 Allegations of his having acted at the behest of the state authority with a view to scuttle the chances of nominee of the opponent society shall not be gone into by the court. Much is alleged against the present petitioner by the opponent, by emphatically urging that this application is preferred mala fide and with evil design and this is also a dishonest attempt on the part of the applicant in collusion with the State authorities. However, the court chooses not to go into any of these aspects and purely on the law on the subject, as has been applied to the factual matrix, it holds unfailingly that the applicants neither being necessary nor proper parties and nor their legal rights being jeopardized, this application to be impleaded as a party respondent deserve rejection.

12. Accordingly, this application fails and is REJECTED. Rule is discharged. No order as to costs.

(SONIA GOKANI, J) MISHRA AMIT V./UMESH Page 21 of 21 Downloaded on : Wed Dec 30 20:33:13 IST 2020