Gujarat High Court
Kuvrabhai Bharabhai Bharvad vs State Of Gujarat & 3 on 14 July, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CA/597/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 597 of 2016
In SPECIAL CIVIL APPLICATION NO. 268 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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KUVRABHAI BHARABHAI BHARVAD....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR BS PATEL WITH MR KEYUR A VYAS, ADVOCATE for the Applicant(s)
No. 1
MR NATVAR D BHARWAD, ADVOCATE for the Applicant(s) No. 1
MR BHARGAV PANDYA, AGP ON ADVANCE COPY for the Respondent(s)
No. 1
MR DHAVAL DAVE, SR. ADVOCATE WITH MR SHIVANG J SHUKLA,
ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 14/07/2016
ORAL JUDGMENT
Page 1 of 7
HC-NIC Page 1 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT The present Civil Application is filed as the applicant wants himself to be impleaded as party respondent in the main petition. The applicant is a member of the Uchvan Gopalak Dudh Utpadak Sahakari Mandli Limited. The said cooperative society is the petitioner in the main petition being Special Civil Application No.268 of 2015. Therein the challenge is directed against the order passed by the third respondent-the Special Auditor (Milk), Surat. Thereby the said authority has directed re-auditing of the accounts of the petitioner-cooperative society under sub-section (5) of Section 84 of the Gujarat Cooperative Societies Act, 1961.
2. The applicant herein happens to be a person upon whose application the aforesaid impugned order directing re-audit came to be passed. The petitioner had paid fees of Rs.50,000/- and had requested the third respondent to undertake re-audit alleging certain irregularities in the accounts. The third respondent accepted the request of the applicant to exercise powers under Section 84(5) of the Act to do re-audit. Narrating the aforesaid facts and circumstances, learned advocate Mr.B.S. Patel for the applicant pressed to submit that the petitioner is a proper and necessary party entitled to be impleaded in the main petition.
3. Learned senior advocate Mr.Dhaval Dave for the respondent cooperative society-original petitioner opposed the prayer. According to his submission the applicant member does not have any cultivable interest Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT to become a party in the main petition. He further submitted that a member of the society speaks only through the collective voice of the society. It was submitted that the applicant is neither proper nor necessary party and cannot be allowed to be joined on askance. Learned senior counsel supported his opposition against making the application party by placing reliance on decision of the Supreme Court in Ravi Yashwant Bhoir Vs District Collector, Raigad [(2012) 4 SCC 407], in particular paragraph 58 thereof.
4. The Apex Court recorded and held thus, "Shri Chairman Raghunath Gharat, ex-President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising our 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 eye of the 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." (Para 58) 4.1 In the case before the Apex Court the complainant who had filed a complaint in respect of abuse of public office, the Apex Court held that he had only a remote interest and cannot seek to be party, observing as above.
5. Section 84(5) of the Gujarat Cooperative Societies Act, 1961 deals with audit of the accounts of the society. It provides inter alia that upon an application made or otherwise that it is necessary and Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT expedient to get any accounts of the society re- audited, the Registrar is entitled to pass such orders and undertake re-audit of the accounts. Re-audit to the accounts which may be undertaken under the orders of the Registrar as per the provisions, shall be as per the provisions contained in the Act applicable to conduct of audit. It is true that the applicant had made an application and requested the Registrar to take out re-audit proceedings, however, role of the applicant cannot be said to be traveling any farther after his request is accepted. The exercise of powers under sub-section (5) of Section 84 is an independent exercise. The competent authority shall carry out such independent exercise to do the re-audit of the accounts of the society in terms of and in accordance with the provisions made in the Act for the purpose, namely of audit. This is also an independent process in accordance with the provisions. It is, therefore, difficult to perceive any interest of the applicant in such exercise of powers which the competent authority would undertake, consequently, applicant's claim for becoming party in the main petition is a plea too weak to be accepted.
5.1 In Ravi Yashwant Bhoir (supra), the Apex Court underlined the principles with regard to impleadment as party in the legal proceedings. It was stated, "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 lis. A Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons."
(para 59) 5.2 It was further stated that in the garb of being a necessary party, a person cannot be permitted to make a case for become a party on the ground that it is in general public interest. Thereby it is suggested that on the specious ground of promoting general interest, a party cannot be allowed to join the proceedings. Legally it would be an impermissible course. A person having remote interest cannot be permitted to become a party in the lis. As noted above, a person who want to become a party is required to establish that he has some right. The Apex Court observed that, "... ... ... as the person who 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 int eh injured person. A person cannot be heard as a party unless he answers the description of aggrieved party. (Vide Adi Pherozshah Gandhi v. Advocate general of Maharashtra, Jasbhai Motibhai Desai v. Roshan Kumar, Maharaj Singh v. State of U.P., Ghulam Qadir v. Special Tribunal and Kabushiki Kaisha Toshiba v. Tosiba Appliances Co.)... ..." (Para 60) 5.3 It was next submitted by learned advocate for the applicant that applicant can be said to be interested because of the provision of Section 77(4) of the Cooperative Societies Act. Looking at Section 77, it provides for Annual General Meeting. Sub- section 94) thereof contemplates that in every Annual General Meeting, the balance-sheet and Profit & Loss Accounts shall be placed for adoption. Submission of Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT learned advocate for the applicant was that in such meeting the applicant would have a right of audience and right to object as member. It is too far-fetched a logic to assist the applicant in his plea for becoming party. It is not tenable in law that merely because as a member, the applicant can remain present in the meeting for consideration of the accounts under Section 77(4), he gets right to become party in the proceedings of challenge to the order for re-auditing. The submission that because of provision of Section 77(4) of the Act, the applicant derives interest to become party is misconceived. The subject as well as the stage of Section 77(4) are altogether different. It does not vest the applicant with any legal interest necessarily to be impleaded as party.
6. A party may be impleaded in the legal proceedings provided he has got a legal interest in the matter. Legal interest has to be contra- distinguished from interest. Interest in the subject matter alone cannot be the criteria. The party must have legal interest and not mere interest to become entitle to be joined in the proceedings. For the sake of joining, impleadment cannot be permitted. In the facts of the present case, the applicant lacks legal interest to become party in the main petition. He cannot be said to be interested with legal interest. In other words, his interest in the outcome of the proceedings, which alone would entitle him to become party, is not supported by any possible right or possible injury to derive legal interest in the proceedings. The applicant cannot be said to be a Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Jul 19 06:43:00 IST 2016 C/CA/597/2016 JUDGMENT necessary party, nor he is any way viewed as proper party. The applicant fails in his prayer and cannot be joined.
7. Hence the present Civil Application is dismissed.
(N.V.ANJARIA, J.) Anup Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Jul 19 06:43:00 IST 2016