Farid Ahmed v. Managing Committee of Islamia Secondary School
2012-02-17
TINLIANTHANG VAIPHEI
body2012
DigiLaw.ai
JUDGMENT T. Vaiphei, J. 1. This batch of three miscellaneous applications, involving a common question of law, were heard together and are now being disposed of by a common order. The question of law involved is, whether the three applicants are necessary or proper parties in the connected writ petition. Before proceeding further, I may straightaway note that the writ petition was filed by the writ petitioners before this Court for issuing a direction upon the State-respondents for approving the recommendation of the outgoing Managing Committee of Islamia Secondary School, Shillong ("the school" for short) for reconstitution of the Managing Committee of the school for the period 2011-2014; the writ petition is now pending for disposal. The writ petitioners therein also filed an application being Misc. Case No. 402(SH) of 2011 for issuing an interim order for directing the State-respondents to allow the outgoing Managing Committee to continue to function as such till a new Managing Committee is reconstituted. this Court by the order dated 30-11-2011 called upon the parties impleaded therein to file their show cause/written objection on 19-12-2011 and allow the outgoing Managing Committee to continue to look after the affairs of the school till the next returnable date. The case of the applicants in Misc. Case No. 428(SH) of 2011 is that they belong to Muslim community in Shillong and that the son of the applicant No. 1, namely, Master Aman Nongrum, is a student of Class V in the school, while the applicant No. 2 is vitally interested in the smooth management of the school in the interest of Muslim community and both the applicants are, therefore, necessary parties in the connected writ petition and should accordingly be impleaded as the party-respondents in the writ petition. 2. According to the applicants, the school was founded by the Muslim community in the year 1922 for imparting affordable and quality education to their wards and also to the students of other communities.
2. According to the applicants, the school was founded by the Muslim community in the year 1922 for imparting affordable and quality education to their wards and also to the students of other communities. However, from the year 2002 onwards, when the respondent No. 2 took over as the Secretary of the Managing Committee of the school, there has been deterioration in the quality of the education imparted to the students as well as in the management of the school; the building of the school is now in a dilapidated condition and has virtually turned into a junkyard whereas the fund of the school and the grants-in-aid received from the Government from time to time have been misused. In spite of all this, the writ petitioner No. 2, without following the procedure for election by guardians and teachers of the school and without following the procedure for reconstitution of the Managing Committee of the school, had successively managed to get his own proposal submitted for reconstitution of the Managing Committee for three consecutive terms and obtained the approval of the State Government to such proposals by means of misinformation and by misleading the State Government and has been clinging on to the post of the Secretary of the Managing Committee of the school till now by virtue of such manipulations. The Managing Committee was last re-constituted by the concerned Inspector of Schools on 10-12-2008 for a period of three years i.e. till 30-11-2014. The continued and perpetual re-constitution of the Managing Committee of the school on the basis of the own proposals of the writ petitioner No. 2 heretofore is in contravention of the rules governing Government Aided High and Middle School. As the guardian and parent of the said student of the school and as members of the Muslim community in Shillong, both the applicants are vitally interested in the smooth and efficient running of the school and any order passed by this Court in the connected writ petition will seriously affect their wards and, as such, they are necessary parties in the writ petition by the writ petitioners. 3. In Misc.
3. In Misc. Case No. 429(SH) of 2011, the case of the applicant is that it is a social organization for members of the Muslim communities, is a registered body having registration number SR/TSMU-13/76, and is represented by its Assistant General Secretary on being authorized by the General Secretary vide his letter dated 15-12-2011. As a social organization for members of the Muslim community in Shillong, it is vitally interested in the outcome of the writ petition, and any order passed by this Court in the connected writ petition will seriously affect them. The case of the applicant in Misc. Case No. 432(SH) of 2011 is that he is the heir and grandson of the late Hakhim Mohammed Ismail, who was the founder of Islamia Madrassa (now known as Islamia Secondary School). The fact that his grandfather is the founder of the school was acknowledged by the Managing Committee of the school in its resolution adopted in their meeting held on 1-10-2000. Consequently, he was nominated as the founder heir member of the Managing Committee of the school vide the order dated 13-8-2002 of the Inspector of Schools, East Khasi Hills approving the re-constitution of the Managing Committee till his arbitrary and illegal removal by the Managing Committee of the school in contravention of the related rules vide the letter dated 21-7-2005 issued by the Inspector of Schools approving the re-constitution of the Managing Committee. As the direct descendant of the founder member of the school and as one concerned with the welfare of the students of the school he is to be impleaded as a party respondent in the connected writ petition. 4. After going through the applications and the written objections filed by the writ petitioner and on hearing the Learned Counsel appearing for the rival parties, I deem it appropriate to take up first Misc. Case No. 429(SH) of 2011 and Misc. Case No. 432(SH) of 2011. At the outset, Mr. B. Bhattacharjee, the Learned Counsel for the writ petitioner, while opposing Misc. Case No. 429(SH) of 2011, contends that the applicant has no competence or authority to file the application he is not the prescribed authority under the Constitution of the Shillong Muslim Union ("the Union"); only the General Secretary of the Union is authorised to file the application.
B. Bhattacharjee, the Learned Counsel for the writ petitioner, while opposing Misc. Case No. 429(SH) of 2011, contends that the applicant has no competence or authority to file the application he is not the prescribed authority under the Constitution of the Shillong Muslim Union ("the Union"); only the General Secretary of the Union is authorised to file the application. Nor is he authorised by the Governing Body of the Union as required by the Meghalaya Societies Registration Act, 1983 ("the Act"). His contention has force. The Shillong Muslim Union is a society registered under the provisions of the Act, and is having its own constitution to govern and regulate its functionings. The applicant is neither authorised by Clause (g) of Chapter-XII of the Constitution for the Muslim Union, Shillong to file the application nor is he authorised by Section 19(2) of the Act to file such an application. Therefore, Misc. Case No. 428(SH) of 2011 is not maintainable, and is, therefore, rejected. 5. Coming now to Misc. Case No. 432(SH) of 2011, the foundation of the claim of the applicant that he is the founder-member of the school through his grandfather, the late Hakim Mohammad Ismail. This was acknowledged by the Managing Committee of the school in the resolution adopted by it on 1-10-2000. His status as the founder heir member of the school was approved by the Inspector of Schools in his order dated 13-8-2002. This contention is refuted by the Learned Counsel for the writ petitioner that the school was not founded by any particular person; it was the collective efforts of several donors which helped the establishment of the school. According to the Learned Counsel, the resolution dated 1-10-2000 had at one time been fraudulently obtained by the applicant, but this was revoked by the Managing Committee by its resolution No. 13 dated 12-12-2004 oh learning the actual state of affairs. The applicant was accordingly removed from the Managing Committee by the resolution passed by the Managing Committee on 12-12-2004 by resolution No. 12 on the ground that the applicant had deceived them; the resolution was subsequently approved by the Inspector of Schools vide his letter dated 1-2-2005. These facts are not disputed by the applicant.
The applicant was accordingly removed from the Managing Committee by the resolution passed by the Managing Committee on 12-12-2004 by resolution No. 12 on the ground that the applicant had deceived them; the resolution was subsequently approved by the Inspector of Schools vide his letter dated 1-2-2005. These facts are not disputed by the applicant. Neither did the applicant ever challenged the resolution dated 12-12-2004 removing him from the Managing Committee or the letter dated 1-2-2005 approving the resolution of the Managing Committee removing him as the founder heir member of the school. Consequently, this application is not maintainable. Misc. Case No. 32(SH) of 2011 is accordingly dismissed. 6. This then takes me to Misc. Case No. 428(SH) of 2011. The material facts of the case have already been adverted to earlier. The case of the applicants in the Misc. Case is that the applicant No. 1 is the father of a student of the school while the applicant No. 2 is a member of the Muslim community in Shillong and that both of them are, therefore, vitally interested in the affairs of the school. The question to be determined is, whether they are necessary or proper parties in the connected writ petition. To reiterate the legal position, a necessary party is one whose presence is indispensable to the institution of the suit, against whom the relief is sought and without whom no order can be passed. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for complete and final decision on the question involved in the proceeding. In other words, in the absence of a necessary party, no decree can be passed, while in the absence of a proper party, a decree can be passed so far as it relates to the parties before the Court. His presence, however, enables the Court to adjudicate the lis more effectively and completely. In Udit Narain v. Board of Revenue, AIR 1963 SC 786 , it was held by the Apex Court that though a petition under Article 32 or Article 226 of the Constitution cannot be said to be a regular suit, the general principles applicable to civil proceedings will apply to proceedings under Articles 32 and 226 of the Constitution also.
In Udit Narain v. Board of Revenue, AIR 1963 SC 786 , it was held by the Apex Court that though a petition under Article 32 or Article 226 of the Constitution cannot be said to be a regular suit, the general principles applicable to civil proceedings will apply to proceedings under Articles 32 and 226 of the Constitution also. The application for impleadment of a third party as a party to a civil suit is governed and regulated by Order 1, Rule 10(2) of the Code of Civil Procedure. This provision once again came up for consideration before the Apex Court in the recent case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd., (2010) 7 SCC 417 . After reviewing the case-laws, the Apex Court held : 13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominis litis, may choose the person 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 a party improperly joined, whether as a 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 to effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 14.
14. The said provision makes it clear that a Court may, at any stage of the proceedings (including suits for specific performance), either upon or 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 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 whose favour 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. 7. From what has been observed by the Apex Court in the foregoing, it is now beyond the pale of controversy that, ordinarily, the plaintiff in a suit, being a dominus litis, cannot be compelled to sue a person against whom he does not seek any relief.
7. From what has been observed by the Apex Court in the foregoing, it is now beyond the pale of controversy that, ordinarily, the plaintiff in a suit, being a dominus litis, cannot be compelled to sue a person against whom he does not seek any relief. However, an exception has been carved out from the ordinary rule by the legislature that a discretion is conferred upon the Court at any stage of the proceedings to add a person whom it considers to be a necessary party or a proper party in order to enable it to effectively and completely adjudicate upon and settle the controversy involved in the suit. Of course, in exercising its discretion, the Court will act according to reason and fair play and not according to whims and caprice. Undoubtedly, this discretion can be exercised at any stage of the proceedings either suo motu or by an application of either party. In Mumbai International Airport (P) Ltd. case (supra), the definition of "discretion", as given by Lord Mansfield in R. v. Wilkes, (1558-1774) All ER Rep 570, as reiterated by the earlier Apex Court decision in Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 was again quoted therein to mean "when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular". It is also made clear by the Apex Court therein that 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. In the instant case, the writ petition, for which impleadment as a party-respondent has been sought for, is directed against the inaction/refusal on the part of the jurisdictional Inspector of Schools to approve the re-constituted Managing Committee of the school. The applicants are not seeking any relief against the writ petitioners. Neither is this a case wherein the presence of the applicants is necessary for effectual and complete adjudication of the questions involved in the writ petition.
The applicants are not seeking any relief against the writ petitioners. Neither is this a case wherein the presence of the applicants is necessary for effectual and complete adjudication of the questions involved in the writ petition. It must be remembered that the instant case is not public interest litigation, but a private interest litigation prosecuted by the writ petitioners against the State-respondents: the concept of locus standi applicable to public interest litigation cannot be imported into this ordinary/normal writ petition filed by private individual for redressal of their private grievances. There is, therefore, no merit in this application for impleadment of the applicants in the connected writ petition. For the reasons stated in the foregoing, all the three Misc. Cases are liable to be rejected, which I hereby do. However, the parties are directed to bear their respective costs. Petition dismissed.