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2018 DIGILAW 152 (CAL)

Debasish Roy v. Union of India

2018-01-19

MIR DARA SHEKO

body2018
JUDGMENT : 1. Pursuant to the order dated 20th December, 2017, the applications, being CAN 11977 of 2017 and CAN 11979 of 2017, filed by the writ petitioner and the applications, being CAN 1204 of 2016 and CAN 1205 of 2016, filed by the applicant, Dhiraj Roy in W.P. No. 23155(W) of 2012, are taken up together for hearing and disposal. 2. Heard Mr. Danish Taslim, learned counsel being assisted by Ms. Diksha Ghosh, learned counsel representing the writ petitioner and the applicant in CAN 11977 of 2017 and CAN 11979 of 2017. 3. Heard also Mr. Narayan Chandra Mondal, learned counsel representing the applicant in CAN 1204 of 2016 and CAN 1205 of 2016, by which the applicant, Dhiraj Roy prayed for being added as party to the writ petition, being WP 23155(W) of 2012 and for vacating the interim order passed by this Court in the writ petition. 4. Heard also Mr. Yadav, learned counsel representing the Indian Oil Corporation Ltd. in the writ petition as well as the opposite parties in the applications. 5. Mr. Taslim opposing the prayer of the applicant and ventilating the prima facie merit in the writ petition submitted that his client had applied against initial advertisement published by the Indian Oil Corporation authority for LPG distributorship as G.P. category in the year 2011. The grievance of the petitioner is that without maintaining the norms and rules of the brochure the Indian Oil Corporation authority having changed the category of the location from G.P. category to S.C. category, this writ petition has been filed. This Court on 20th November, 2012 allowing the respondents to submit affidavit, passed an interim order to the effect that “any appointment made during pendency of the writ petition for the location at page 100 of the writ petition shall abide by its result.” 6. Mr. Taslim invited attention of the Court to the interim order passed by this Court on 12th December, 2012, which is as follows : “Letter of intent shall not be issued in favour of the candidate selected for Basirhat reserved for S.C. category without obtaining leave of the Court.” 7. Submitted further that ultimately to prevent the Indian Oil Corporation, contempt notice had to be issued and the Indian Oil Corporation auhorities ultimately undertook that without leave of the Court they would not issue any letter of intent. 8. Submitted further that ultimately to prevent the Indian Oil Corporation, contempt notice had to be issued and the Indian Oil Corporation auhorities ultimately undertook that without leave of the Court they would not issue any letter of intent. 8. Upon ventilating the gist of the case and claiming entitlement of the writ petitioner to get LPG. Distributorship, Mr. Taslim submitted that the initial advertisement could not be changed by the whims of the Indian Oil Corporation and the applicant can have no nexus with such prayer for addition of party in the writ petition and accordingly, he relied upon the following cases : (1) Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., judgment dated 6th July, 2010 delivered by the Supreme Court in Civil Appeal no. 4900 of 2010. (2) S.P. Chengalvaraya Naidu vs. Jagannath, judgment dated 27th October, 1993 delivered by the Supreme Court reported in AIR 1994 SC 853 . (3) Makhan Lal Chakraborty vs. S.K. Chatterjee & Ors., judgment dated 28th August, 1953 delivered by the Calcutta High Court reported in AIR 1954 Cal 208 . 9. Submitted that if the applicant in the application under reference be not even a property party, the application for addition of party is liable to be rejected and therefore, the application for vacating the interim order is also liable to be rejected. 10. Mr. Mondal per contra submitted that his client as per advertisement in S.C. category and following the norms, was selected but due to existence of the interim order, the Indian Oil Corporation is not in a position to issue letter of intent for which his client is worst sufferer. Submitted further that the said interim order as against his client, who was selected as S.C. category, was obtained behind his back, and therefore, the writ petition should be adjudicated in his presence and he is necessary party and not a proper party. Mr. Mondal accordingly relied upon the case of Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. reported in 2013 (2) CHN (SC) 165 and invited attention to paragraphs 15 and 28 thereof. 11. Mr. Mr. Mondal accordingly relied upon the case of Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. reported in 2013 (2) CHN (SC) 165 and invited attention to paragraphs 15 and 28 thereof. 11. Mr. Yadav though has no role virtually in the matter of prayer for addition of party, but apprised the Court that due to existence of the interim order, the Indian Oil Corporation authority is not in a position to issue letter of intent in favour of the applicant in the applications, being 1204 of 2016 and CAN 1205 of 2016, who was selected in the advertised location under S.C. category and as G.P. category. 12. During course of hearing Mr. Yadav apprised the Court that the marketing plan 2004-07 for which there was first advertisement dated 11th July, 2011 for G.P. category, was kept unchanged for the urban area. The second advertisement dated 9th September, 2012 was for the S.C. category. The third advertisement dated 30th December, 2012 was decategorized from G.P. to Open category. 13. At the very outset it has been observed that this decategorization is under challenge in the writ petition, which will be adjudicated and decided at the appropriate stage. Now the question is whether the applicant in the application for addition of party should be considered favourably or he should be declined as opposed by filing separate applications, being CAN 11977 of 2017 and CAN 11979 of 2017. 14. Perused the cases cited at the bar. In the case of Makhan Lal Chakraborty vs. S.K. Chatterjee & Ors. (supra), the relevant portions of paragraphs 8, 10(1) and 10(3) thereof are set out : “8. The objection, therefore, is fatal, it is one of substance and not of mere form, for the principle has been recognized wherever writs of mandamus are issued, that if a right, title or interest in or to real property is directly involved; all persons owning or claiming the same, must as a rule be joined as parties.” “10(1) In an application under Article 226 of the Constitution, all persons must be made parties, who are or are likely to be affected by the issue of a writ or order. In the case of mandamus or prohibition all parties must necessarily be before the Court who are required to obey the directions of the writ, or whose presence is necessary to make such directions effective.” “10(3) Any party likely to be affected by a writ or order, may appear at the hearing (or make a prior application), and ask for leave to join the proceedings, or to have the rule served upon it.” 15. Though the same principle is apparent for better appraisal of the observation of this Court, but some relevant portion of paragraph 8 of the judgment in the case of Mumbai International Airport vs. Regency Convention Centre & Hotels Pvt. Ltd. (supra) is set out: “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.” 16. The same principle is also apparent from the judgment delivered by the Supreme Court in the case of Thomson Press India Ltd. vs. Nanak Builders and Inventors P. Ltd. (supra). Paragraphs 15 and 28 thereof are set out: “15. In the case of Anil Kumar Singh vs. Shivnath Mishra alias Gadasa Guru (1995) 3 SCC 147 , in a suit for specific performance of contract a petition was filed under Order 6 Rule 17 CPC seeking leave to amend the plaint by impleading the respondent as party defendant in the suit. The contention of the petitioner was that the vendor had colluded with his sons and wife and obtained a collusive decree in a suit under the U.P. Zamindari Abolition and Land Reforms Act. It was contended that by operation of law they became the co-sharers of the property to be conveyed under the Agreement and, therefore, he is a necessary party. The Trial Court dismissed the petition and on revision the High Court of Allahabad affirmed the order. It was contended that by operation of law they became the co-sharers of the property to be conveyed under the Agreement and, therefore, he is a necessary party. The Trial Court dismissed the petition and on revision the High Court of Allahabad affirmed the order. In an appeal this Court refused to interfere with the order and observed: “In this case, since the suit is based on agreement of sale said to have been executed by Mishra, the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit.” “The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the question involved in the suit. The question before the Court in a suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.” “Sub-rule (2) of Rule 10 of Order 1 provides that the Court may either upon or without an application of either party, add any party whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party.” 28. “From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit.” 17. It is settled law that though the Sections of the Code of Civil Procedure are not readily applied in adjudicating the writ application, but the principles laid down in the Code mutatis mutandis are applicable in the procedural matter for adjudication of the writ. Therefore, it reveals that any addition of party in a writ petition, though filed by another person assailing some other act or action of the State of Statutory Body etc. and if any third party can satisfy the Court that he is having some interest, the Court may decide favourably for allowing him/her to be added as party in such writ proceeding. It is also obvious that the status of the parties in the proceeding as respondents or opposite parties, they are too, one is the necessary party and other is the proper party, as rightly pointed out by Mr. Taslim. In absence of proper party the proceeding may proceed, but in absence of necessary party it can not. From the earlier orders as passed by this Court it appears that the interest of the applicant, Dhiraj Roy has already been accrued, that has been stalled as a consequence of interim order passed by this Court at the instance of the writ petitioner, who has been fighting for vacancy of G.P. category. Obviously, the applicant had no opportunity of hearing to oppose as against his prayer, who was allotted the berth of G.C. category. 18. The fact in brief, as indicated above, and, the interim orders as were passed by this Court twice in succession, gave at least clear indication that there may not be any hindrance on the way of the Indian Oil Corporation authority to proceed in accordance with law, but, the decision shall abide by the result of the writ petition. Of course, this interim order was passed on 20th November, 2012 and thereafter, it was modified on 12th December, 2012, as already quoted above. Admittedly, the writ petitioner did not offer his candidature under the S.C. category. The writ petitioner has to establish and justify his status under G.P. category, which was subsequently cancelled by the Indian Oil Corporation, which is the lis of the writ petition. Since by that time the applicant Dhiraj Roy had applied for S.C. category, he was selected but he was stalled due to existence of the interim order dated 12th December, 2012. Since by that time the applicant Dhiraj Roy had applied for S.C. category, he was selected but he was stalled due to existence of the interim order dated 12th December, 2012. Accordingly, to the estimation of this Court in the writ petition, while his candidature under S.C. category has been questioned by urging relevance of the earlier advertisement, which was made for G.P. category, the presence of the applicant is necessary, meaning thereby he is a necessary party and not merely a proper party. 19. In view of above, the applicant-Dhiraj Roy is necessary party in this case and the application, being CAN 1204 of 2016, stands allowed with direction upon the department to amend the cause title of the writ petition by incorporating the applicant with particulars as available in the cause title of the application, being CAN 1204 of 2016, as added respondent. 20. Now in consideration of other application, being CAN 1205 of 2016, this Court observes that though the order dated 12th December, 2012 was passed behind back of the added respondent and since prior to that order there was already indication that if there would be any appointment, that would abide by the result of the writ petition and since admittedly as apprised by Mr. Yadav that the added respondent no.6 has already been selected in S.C. category location at Basirhat as per second advertisement dated 9th September, 2012 and the letter of intent has been kept withheld in view of the order dated 12th December, 2012, leave is granted in favour of the Indian Oil Corporation to issue letter of intent in favour of the added respondent no.6, which of course shall abide by the result of the writ petition, being W.P. No. 23155(W) of 2012. The application, being CAN 1205 of 2016 stands allowed. As a consequence of the above decision, the applications, being CAN 11977 of 2017 and CAN 11979 of 2017, stand dismissed. 21. No order as to costs. Later 22. Mr. Taslim after passing the above order prays for staying operation of this order, against which the added respondent no.6 has opposed. 23. In view of the observation made above and since the interim order, which was subsisting, has been modified simply and which shall be abide by the result of the writ petition, the prayer of the petitioner is declined. 24. 23. In view of the observation made above and since the interim order, which was subsisting, has been modified simply and which shall be abide by the result of the writ petition, the prayer of the petitioner is declined. 24. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.