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2018 DIGILAW 445 (UTT)

BHUPESH AGARWAL v. STATE OF UTTARAKHAND

2018-09-07

SHARAD KUMAR SHARMA

body2018
JUDGMENT Sharad Kumar Sharma, J. (Oral) The petitioners, in paragraph no. 1, of the writ petition have made the following pleading: “1. That the petitioners being aggrieved by the order dated 21.05.2018 allegedly passed in Case No. 27 under Rule 109(1) of U.P. Consolidation of Holdings Act and the order dated 01.02.2001 passed by respondent no. 3 and further the order dated 23.08.2017 passed by respondent no. 2 whereby the land of petitioners has been recorded in the name of State Government and further recording the name of private respondent no. 5 as Class-4 tenure, are desirous to challenge the same invoking supervisory jurisdiction of this Hon'ble High Court invoking Article 227 of the Constitution of India of following facts and circumstances hereunder. True and correct copy of the khatauni is being marked and annexed as Annexure No. 1." 2. Apparently, as pleaded, the petitioners seem to challenge the order dated 21.05.2018 passed in Case No. 27 under Rule 109 (1) of the Uttar Pradesh Consolidation of Holdings Act, 1953, which happens to be the process of enforcing the order passed by the Consolidation Authorities on merits; as well as challenge is also made to the order dated 23.08.2017 passed by respondent no. 2. In the relief clause, the petitioners have sought the following reliefs: “(I) Issue a writ, order or direction in the nature of certiorari calling for the record of the case and to quash the impugned order dated 01.02.2001 and order dated 23.08.2017 (Annexure No. 2 Colly.) passed by respondent no. 3 and respondent no. 2 respectively. (II) Issue any other suitable writ, order or direction which this Hon'ble court may deem fit, just and proper in the circumstances of the case as also in the interest of justice. (III) Allow the writ petition with costs." 3. On scrutiny of the impugned order under challenge, i.e. order dated 23.08.2017, it is clear that it is an order passed in a Revision preferred by one Mr. Avtar Singh, who is the applicant of the Impleadment Application listed today, being Revision No. 09/2016-17 “Avtar Singh Vs. State of Uttarakhand and others", whereby the Revisional Court has affirmed the order dated 01.02.2001 passed in Case No. 993/1995-96 passed by the Consolidation Officer in proceedings under Section 9(A)(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953. Avtar Singh, who is the applicant of the Impleadment Application listed today, being Revision No. 09/2016-17 “Avtar Singh Vs. State of Uttarakhand and others", whereby the Revisional Court has affirmed the order dated 01.02.2001 passed in Case No. 993/1995-96 passed by the Consolidation Officer in proceedings under Section 9(A)(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953. The consequential order, passed under Rule 109(1) of the Uttar Pradesh Consolidation of Holdings Act, 1953, is the order referred to in paragraph no. 1 of the writ petition i.e. dated 21.05.2018. 4. A person coming to litigation before a superior Court, under a statutory provision, once challenges an order passed in the proceedings launched at the behest of a private person, obviously, has to make the said private person, in whose proceedings, the order has been passed, a necessary party as any order likely to be passed by the superior Court would be considering his/her rights or liabilities and has all probability of effecting him. Even when a person, or a counsel too, institutes proceedings and questions the order, the natural corollary, which follows is that he must have scrutinized the order; must have checked the legal and factual aspects; must have determined the grounds, on which he has to put the said order to challenge and must have scrutinized the array of parties of the order for the said purpose. Herein, the Revision was filed by Mr. Avtar Singh, but the petitioners have not impleaded Mr. Avtar Singh as a party respondent in the writ petition, in whose revision, the impugned order dated 23.08.2017 was passed. 5. After being made aware of the filing of the writ petition against the Revisional Order dated 23.08.2017, Mr. Avtar Singh has filed an Impleadment Application being Impleadment Application No. 9458 of 2018, for being impleaded as one of the party respondents in this writ petition. In paragraph no. 2 of the Impleadment Application, Mr. Avtar Singh has taken a specific pleading to the effect that he has been deliberately, knowingly and willfully not made a party in the writ petition and the writ petition suffers from the defect of mis-joinder of parties and is liable to be dismissed on this ground. Paragraph nos. 2, 3, 4 and 5 of the Impleadment Application reads as follows: “2. Paragraph nos. 2, 3, 4 and 5 of the Impleadment Application reads as follows: “2. ......the order is being challenged by the petitioners in the present writ petition but the petitioners deliberately, knowingly and willfully not made the party to the applicant. The writ petition is suffered from misjoinder of parties and liable to be dismissed on the ground alone. 3. That the applicant is the party before the trial court as well as the revisional court but the petitioners only to misguide this Hon'ble Court has filed the writ petition without made party to the applicant. The petitioners have not approached this Hon'ble Court with clean hand and suppressed the facts, the necessary party was not made in the writ petition and obtained the ex-party interim order, the interim order is liable to be vacated with cost. 4. That since the petitioners have challenged the order passed by the learned court below on the application of the applicant and the applicant is the interested party and right of the applicant has to be decided. The applicant has already filed the writ petition against the order dated 1.2.2001 and 23.8.2017 being WPMS No. 2814 of 2017 Avtar Singh Vs. Director of Consolidation, Uttarakhand and others, same is pending petitioners have filed the impleadment application and affidavit was swore on the same day but the petitioners intentionally not made the party to the applicant. 5. That the facts and circumstances state above it is expedient and necessary in the interest of justice this Hon'ble Court may be pleased to allow this application and petitioner may be directed to implead the applicant as Respondent No. 6 “Avtar Singh s/o Sri Pratap Singh, R/o Village Kiratpur Kolada, Tehsil Rudrapur, District Udham Singh Nagar" in the array of parties to settle the dispute between the parties and dismissed the above noted writ petition with cost on the ground of non-joinder of necessary party, or pass such and further order which this Hon'ble Court may deem fit and proper in the circumstances of the case." 6. In response to the arguments extended by Mr. S.K. Mandal, learned counsel for the applicant to the Impleadment Application, with regard to the effect of non-joinder of parties, Mr. In response to the arguments extended by Mr. S.K. Mandal, learned counsel for the applicant to the Impleadment Application, with regard to the effect of non-joinder of parties, Mr. Siddharth Singh, learned counsel for the petitioners admits that this happens to be apparent legal infirmity and submits that it was by way of negligence or may be a human error that Mr. Avtar Singh was not impleaded as a party. Apart from this argument, there is no other legal argument or defense raised by the learned counsel for the petitioners as to what led to a situation of non-impleadment of Mr. Avtar Singh as a party respondent in the writ petition. The counsel drafting this petition has a wide and inherited knowledge of Civil and Revenue proceedings. Whether this mistake was motivated with an intent or by mistake, cannot be assessed by this Court at this stage. 7. In judicial proceedings, in particular before writ Courts, there is no scope of human error or negligence in arraying the parties, in particular, when the order under challenge is in relation to a private individual passed by the Courts below in statutory proceedings. Hence, this Court is of the view that this writ petition suffers from the vices of non-joinder of necessary parties. 8. In the case of State of Assam Vs. Union of India and others reported in (2010) 10 SCC 408 , the Hon'ble Apex Court has held as follows: “16. 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. 21. The State of Assam, while filing these appeals, has enclosed the copies of the memorandum of writ appeals filed by the Union of India before the Division Bench of the High Court. On a perusal of the same, we are of the view that in light of the grounds raised and relief sought, the State of Assam should have been joined as a necessary party. On a perusal of the same, we are of the view that in light of the grounds raised and relief sought, the State of Assam should have been joined as a necessary party. The reason being, firstly, the State of Assam was the first respondent in the writ petition that was filed by the private respondents. Secondly, the main grievance of the Union of India was against the direction issued by the learned Single Judge to pay minimum pay scale to the volunteers, since it is their stand in the writ appeal that under the scheme, their liability is only to the extent of Rs. 100/- per month as honorarium payable to Voluntary Female Attendants and anything over and above, requires to be paid by the State Government. Thirdly, the Division Bench of the High Court has imposed the burden of payment of the salary/wages as directed by the Single Judge on the State of Assam in view of the fact that the appointments were made by the State Government. In our view, this omission or default cannot be characterized as technical breach nor just an irregularity, since this omission has resulted in a party suffering an adverse order without getting a fair hearing. 23. We are also unable to comprehend any possible reasons for the Union of India to omit the State of Assam from the array of parties in the writ appeals filed before the Division Bench of the High Court. The fact remains that they were not made parties to the proceedings. The High Court, in our view, while allowing the appeals filed by the Union of India and shifting the liability of payment of salary/wages to Voluntary Female Attendants on the State of Assam, should have taken a little more care and caution to find out whether the State of Assam is arrayed as a party to the proceedings and whether they are served with the notice of the appeals and in spite of service, whether they have remained absent. This is the least that is expected from the Court. Without making this small verification, the Division Bench of the High Court has fixed huge recurring financial liability on the State Government. This is the least that is expected from the Court. Without making this small verification, the Division Bench of the High Court has fixed huge recurring financial liability on the State Government. In our opinion, in matters of this nature, even by mistake of the party, the proper parties were not arrayed in the proceedings, it is the duty of the Court to see that the parties are properly impleaded. It is well settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the Court should not embark upon the consideration and the correctness of such decision in the absence of such persons. 24. In light of the above findings, we have no other alternative except to set aside the impugned judgment and remand the matter to the Division Bench of the High Court for de-novo hearing." 9. Principles of effect of joinder and non-joinder of parties, necessary for adjudication of a lis, is dealt with in Order 1 Rule 9 of the Code of Civil Procedure, 1908, which, in principle, applies to proceedings under Article 227 of the Constitution of India, in accordance to Part IX of the Code of Civil Procedure, 1908. Order 1 Rule 9 of the Code of Civil Procedure, 1908 reads as under: “9. Misjoinder and non-joinder.— No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:" 10. By Act No. 104 of 1976, a proviso was added in Order 1 Rule 9 of the Code of Civil Procedure, 1908 w.e.f. 01.02.1997, which reads as under : “Provided that nothing in this rule shall apply to non-joinder of a necessary party". Meaning thereby the intention of Order 1 Rule 9 of the Code of Civil Procedure, 1908 is that no suit will defeat by reason of misjoinder or non-joinder and it would only be for the Court to proceed to decide the suit and controversy in regards to rights and interests of the parties actually before it; but by the proviso, it carves out an exception that it will have altogether a different impact due to non-joinder of necessary party. 11. In the case of Jagtu Vs. 11. In the case of Jagtu Vs. Suraj Mal and others reported in (2010) 13 SCC 769 , the Hon'ble Apex Court has held as follows: “5. Before the Trial Court, the appellants/defendants had raised the preliminary objection regarding maintainability of the suit for non-joinder of parties. They had taken a stand that the suit for declaration of certain rights in the land belonging to the State of Haryana was not maintainable without impleading the State of Haryana. 8. In view of the provisions of Section 79 read with Order 27 Rule 1 and in view of the provisions of the proviso contained in Order 1 Rule 9 of the Code of Civil Procedure, if any relief is claimed against the State, the State is a necessary party. This view has been reiterated by this Court time and again, as is evident from the Judgments in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd. Okara & Anr. AIR 1964 SC 669 ; Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi AIR 1977 SC 1701 ; The State of Kerala Vs. The General Manager, Southern Railway, Madras AIR 1976 SC 2538 ; Chief Conservator of Forests, Government of A.P. Vs. Collector & Ors. AIR 2003 SC 1805 and The District Collector, Srikakulam & Ors. Vs. Bagathi Krishna Rao & Anr. 9. In view of the above, we are of the concerned opinion that as the respondents/plaintiffs sought declaration of certain rights on the suit land belonging to the State of Haryana, the State of Haryana was a necessary party. There is a compete fallacy in the finding recorded by the First Appellate Court that the respondents/plaintiffs had not sought any relief against the State. The Appellate Court failed to appreciate that declaration in respect of certain rights over the land belonging to the State was the relief sought in the suit. Thus, in absence of the owner of the land, no such declaration could be granted. Therefore, State of Haryana was a necessary party. The suit, therefore, could not proceed for want of necessary parties." 12. In the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Education Trust reported in (2012) 8 SCC 706 : 2012(2) UAD 362 ., the Hon'ble Apex Court has held as follows: “26. Therefore, State of Haryana was a necessary party. The suit, therefore, could not proceed for want of necessary parties." 12. In the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Education Trust reported in (2012) 8 SCC 706 : 2012(2) UAD 362 ., the Hon'ble Apex Court has held as follows: “26. On the other hand, when the plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non-joinder may follow. However, the said objection should be taken in the trial Court itself so that the plaintiff may have an opportunity to rectify the defect. The said plea cannot be raised in this Court for the first time. This position has been reiterated in State of U.P. vs. Ram Swarup Saroj (2000) 3 SCC 699 . We hold that a plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial Court and has not resulted in failure of justice. In the case of non-joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order VII Rule 11, 2nd defendant is not a necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the respondent herein." 13. In the case of State of Punjab Vs. Nathu Ram reported in AIR 1962 SC 89 , the Hon'ble Apex Court has held as follows: “5. The same conclusion is to be drawn from the provisions of O. 1, r.9, of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. 6. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (s) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed." 14. In the case of Shrikrishna Annaji Sonatake Vs. Ramnarayan Pannalal Lathi and others reported in AIR 1982 Bombay 487, it was held as follows: “9. Mr. J.R. Lalit for the appellant has raised preliminary point that the appeal filed by defendant Nos. 3, 5 and 6 before the Appellate Court is incompetent and defective, because the other defendants who were co-trustees are not jointed in the said appeal either as appellants or respondents. Secondly, he says that as the decree is only passed against the Trust, the appeal filed by defendants Nos. 3, 5 and 6 before the Appellate Court is incompetent and defective, because the other defendants who were co-trustees are not jointed in the said appeal either as appellants or respondents. Secondly, he says that as the decree is only passed against the Trust, the appeal filed by defendants Nos. 3, 5 and 6 is untenable, because they cannot be said to be the persons aggrieved or adversely affected by the decree. I have already quoted the extract of the operative portion of the decree and from that it appears that decree and not show that original defendants Nos. 2 to 11 are made liable under the said decree. 15. Mr. Lalit, the learned Advocate for the appellant has invited my attention to a case reported in Vendakannu Nadar v. Naguneri Taluk Singikulam Annadana Chatram, AIR 1938 Mad 982 and reliance was placed on Head Note (e), which reads as follows: “The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees from, as it were one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the court either as plaintiffs or even as defendants." Following ratio of this decision, I see no difficulty in accepting the contention raised by Mr. Lalit. It is further found in the said authority that the other co-trustees were not made parties and even formal amendment application for bringing them on record was not made. In this case also, Mr. Kankaria has also not made any attempt to make any application to bring the other trustees on record. Therefore, in my opinion, the appeal filed before the District Court is defective. Mr. Lalit also derived support from the Gujarat High Court (FB), case reported in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, AIR 1973 Guj 113 which reiterates the same principle that all the trustees must be before the court when the question of liability of trust properties is involved. In view of this legal position, In hold that the appeal filed by defendants nos. In view of this legal position, In hold that the appeal filed by defendants nos. 3, 5 and 6 before the learned District Judge, Jalgaon being Civil Appeal No. 124 of 1974 was not competent appeal and, therefore, the findings recorded by the learned District Judge in the appeal are liable to be vacated. I do not think it necessary to deal with the other point regarding bar of O. 2, R. 2 of the Civil P.C. as the appeal stands disposed of on the preliminary point raised by Mr. Lalit." 15. In the present case, it is not the petitioners, who have realized the mistake and later had sought the impleadment of the revisionist before the Court below; rather it was the revisionist himself, who had filed the Impleadment Application. 16. Secondly, the petitioners have filed the writ petition and, in fact, had challenged the order dated 21.05.2018 said to have been passed in Case No. 27 under Rule 109(1) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (paragraph no. 1 of the writ petition). The provisions of Rule 109 of the Uttar Pradesh Consolidation of Holdings Act, 1953 are more or less proceedings, which are statutorily contemplated under the Rules, framed under the Act, for the enforcement of the orders passed by the Consolidation Authorities. An order passed under Rule 109 of the Uttar Pradesh Consolidation of Holdings Act, 1953 has got a statutory blend in it and when a person puts challenge to an order, in proceedings under Article 227 of the Constitution of India, or makes it as to be the basis for the cause of action to file writ petition, and when he/she has pleaded in the writ petition that he/she is challenging the order without annexing a copy of it and seek a declaration against the said order and if there is no such pleading assigning plausible reason as to why the order could not be filed, or could have pleaded also to challenge an order by seeking declaration without putting the order on record, but that is not the case at hand and in that eventuality, no writ petition would be maintainable for giving a challenge to an order without annexing a copy of the same. The said ratio has been laid down by the Hon'ble Apex Court as well as the Division Bench of the Allahabad High Court that the order, which is put to challenge, must necessarily be brought on record before the writ Court so as to enable the Court to scrutinize its propriety. In the absence of the same, the writ petition would not be maintainable. In the case of Surinder Singh Vs. Central Government and others reported in AIR 1986 SC 2166 , the Hon'ble Apex Court has held as follows: “The respondents who had challenged the order of Shri Rajni Kant should have filed a copy of the order. In the absence of the order under challenge the High Court could not quash the same. Normally whenever an order of Govt. Or some authority is impugned before the High Court under Art. 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Art. 226 of the Constitution. The order of the High Court could be set aside for this reason, but we think it necessary to consider the merits also. Sec. 33 reads as under : “Certain residuary powers of Central Govt.- The Central Govt. may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder." 17. In the case of Pramod Kumar and others Vs. Sub-Divisional Officer, Khaga, Fatehpur and others reported in 1990 (90) R.D. 649, the Allahabad High Court held as follows: “3. At the very outset, it is significant to mention that although the petitioners have prayed for quashing the order dated 20.1.1988 of the Sub-Divisional Officer, Khaga, District Fatehpur, but a copy of the said order has not been annexed. 4. Sub-Divisional Officer, Khaga, Fatehpur and others reported in 1990 (90) R.D. 649, the Allahabad High Court held as follows: “3. At the very outset, it is significant to mention that although the petitioners have prayed for quashing the order dated 20.1.1988 of the Sub-Divisional Officer, Khaga, District Fatehpur, but a copy of the said order has not been annexed. 4. In view of the pronouncement of the Hon'ble Supreme Court made in the judgment reported in Surinder Singh v. Central Government and others, that the High Court cannot quash an order unless it is brought on the record, this writ petition deserves to be dismissed." 18. Hence, on these aforesaid two counts, this Court holds that the writ petition filed by the petitioners would not be maintainable and suffers from the vices of non-joinder or necessary parties and non-placement of the order under challenge. 19. Accordingly, the writ petition will stand dismissed. There would be no order as to cost.