Vasudev Kanaiyalal Thakkar v. Inorbit Malls (India) Private Limited Thro Authorized Representative

Sonia Gokani, J.:— This is an application filed by the applicant-party-in-person, seeking to implead himself as the party opponent in the main petition being Special Civil Application No. 17552 of 2014, which is filed by the original petitioner-opponent No. 1, herein, namely Inorbit Malls (India) Private Limited and which is pending before this Court, wherein, opponent No. 1-has sought the following prayers:

“11. …

(A) That the Hon'ble Court be pleased to issue a writ of or in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside notice dated November 10, 2014, issued and notice dated February 22, 2015, issued by opponent No. 3 to the petitioner

(B) That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to pass an order staying the operation and implementation of notice dated November 10, 2014, issued and notice dated February 22, 2015, issued by opponent No. 3 to the petitioner,

(C) For ad-interim relief in terms of Prayer B above;

2. The original petitioner-opponent No. 1, herein, is the owner of a Mall in Vadodara. He had been called upon to give free parking facility to the visitors. A notice, therefore, came to be issued upon opponent No. 1 by opponent No. 3-Corporation. Those notices are challenged on the ground that there is no law prohibiting opponent No. 1-original petitioner from charging parking fees and he is entitled to charge the same in his own private property. The charging of parking fees is not contrary to the GDCR Rules, since, it does not contain any provision to the effect that the same cannot be levied. Accordingly, the notices dated 10.11.2014 and 22.02.2015 came to be issued to opponent No. 1-original petitioner, which have been challenged in the main writ-petition.

3. The present applicant is seeking to implead himself as party-opponent in the aforesaid petition on the ground that he himself had gone to the Inorbit Mall of the opponent-original petitioner along with his family members to watch a movie on 06.04.2018 and there he was charged parking fees for his vehicle bearing registration number GJ-13-W-3100. Although, the applicant objected to the same, he was compelled to pay the charges, and therefore, he has sought to implead himself as a party opponent in the main petition.

4. This Court has heard the applicant party-in-person, who has emphatically urged before this Court that he has a right as a person from public not to pay illegally any amount, since, it is his hard-earned money, and therefore, he, though, can afford the same, nobody can compel him or recover from him the amount, which opponent No. 1 otherwise is not legally entitled to recover the same from the general public. He having already visited the place and having been subjected to the parking fees, any outcome of the main matter would directly affect his right, and therefore, his impleadment as the party opponent is must. He, further, has urged that he has preferred a separate petition being Special Civil Application No. 14873 of 2018, in which he is questioning the breach of the GDCR and recovery of parking fees by the owners of the Inorbit Mall. He along with this issue also has raised various other questions, which are not necessary for this Court to highlight in this application.

5. He has placed reliance on a decision of the Andhra Pradesh High Court rendered in ‘CH. MADAN MOHAN v. MUNICIPAL CORPORATION’, AIR 2003 AP 393.

6. The original petitioner-opponent No. 1, herein, has strongly objected to this application on the ground that the applicant-party-in-person is a busy body and is in the habit of causing harassment to the people. He had visited mall of opponent No. 1 in his car on 12.05.2018 and he had tried to enter the mall premises breaking the four wheeler parking queue and when he was asked to asked to follow the queue by the employee of opponent No. 1, he got infuriated and had created a ruckus by shouting and fighting with the officers/employees of opponent No. 1. This action of his had resulted into crowd gathering and an unpleasant situation was created.

7. Apart from that, on the legal aspect, it has been contended that he is a meddlesome interloper and that he is neither a proper nor necessary party and he has no locus standi to be impleaded in the present petition merely because he had visited the mall and was charged with parking fees. This application suffers from mala fide and is misconceived, since, he does not have anything to do in the lis between opponent No. 1 and opponent No. 3-Corporation and he would have no right to be impleaded in the main matter.

8. Learned Sr. Advocate, Mr. Mihir Joshi, appearing with learned Advocate, Mr. S.M. Thakore, for opponent No. 1-original petitioner has argued vehemently before this Court to urge that the tests, which have been laid down by the Apex Court, if, applied in this case, the applicant would neither be fit in the definition of a proper nor as a necessary party. It is, further, urged that the outcome of the lis between the original petitioner-opponent No. 1 and opponent No. 3-corporation and the result of the main matter would affect the present applicant in the same manner as it would affect the general public and that ipso facto can not be a ground to his being impleaded as party-opponent. It is, further, urged that he being a busy body, at the best, he can be said to be a meddlesome interloper, who would not have any right to interfere in the litigation of opponent No. 1-original petitioner, since, the scope of the entire petition would also get changed. Earlier, opponent No. 3-corporation had questioned the charging of parking fees and later on connected several other aspects and that aspect shall be adjudicated by the Court concerned. However, neither as a necessary party nor as a proper party, the applicant can be joined in the main matter. Learned Counsel also detailed the decisions, which have been laid down for a party to be called either a necessary or the proper party. It is also urged that there is a settled law and neither does he have any locus standi nor any right other than any person in the public would have, and therefore, this application does not deserve to be entertained.

9. Reliance is placed on the following decisions, in support of submissions of learned Counsel for the Opponent No. 1

(1) ‘JASBHAI MOTIBHAI DESAI v. ROSHAN KUMAR, HAJI BASHIR AHMED’, (1976) 1 SCC 671;

(2) ‘RAMESH HIRACHAND KUNDANMAL v. MUNICIPAL CORPORATION OF GREATER BOMBAY’, (1992) 2 SCC 524;

(3) ‘SAVITA DEVI v. DISTRICT JUDGE, GORAKHPUR’, (1999) 2 SCC 577;

(4) ‘GOVERNMENT OF ANDHRA PRADESH v. G. JAYA PRASAD RAO’, (2007) 11 SCC 528;

(5) ‘AJMERA HOUSING CORPORATION v. AMRIT M. PATEL (DEAD) THROUGH LRS’, (1998) 6 SCC 500 : AIR 1998 SC 2542;

10. Having thus heard both the sides and also having considered the material on record, this Court, at the outset, would need to take into consideration the law on the subject as to who could be called a proper or a necessary party and when can the third person be impleaded as the party opponent in where the petition is dominus litus decision in the case of ‘JASBHAI MOTIBHAI DESAI’ (Supra).

11. In the matter before the Apex Court, the opponents intended to construct a cinema theater and therefore, they applied for ‘No Objection Certificate’ under the Bombay Cinemas Regulation Act, 1953. The District Magistrate notified the matter and invited the objections from the general public. Several persons objected to the same, however, no objection was lodged by the appellant, who owned the only theatre in the said area. After completing the formalities, the District Magistrate concluded against the grant of certificate.

12. When challenged, the state government, however, did not agree with his recommendations and directed to grant the certificate.

13. After some time, the appellant filed a writ-petition in the High Court under Articles 226 and 227 of the Constitution of India, praying that a writ of certiorari, mandamus or any other appropriate writ, order or direction to direct to cancel the ‘No Objection Certificate’ granted to opponent Nos. 1 and 2, as the same being illegal and void. The High Court dismissed the said petition on the ground of locus standi, and therefore, the appellant had approached the Apex Court, wherein, it is held that the expression “Aggrieved Person” denotes an. elastic, and to an extent an elusive concept. At the best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statue of which the contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature of the prejudice or injury suffered by him. The Apex Court, while disposing of the said matter, on the ground of locus standi to issue the writ of certiorari, categorized the applicants in three different categories, viz. (i) ‘person aggrieved’, (ii) ‘stranger’ or (iii) a meddlesome interloper or a busy body and held and observed thus:

“12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an “aggrieved person” and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matiter of course, but if he does not fulfil that character, and is a “stranger”, the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances.

13. This takes us to the further question: Who is an “aggrieved per son” and what are the qualifications requisite for such a status? The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression “aggrieved person”. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or ‘standing’ to invoke certiorari jurisdiction.

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38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ‘persons aggrieved’. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be “persons aggrieved.

39. To distinguish such applicants from ‘strangers’, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person “against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something”? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of-the words “person aggrieved” is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community? or is it a statute dealing with private rights of particular individuals?”

14. The Apex Court eventually dismissed the appeal on the ground that the appellant had no locus standi to invoke the special jurisdiction under Articles 226 and 227 of the Constitution.

15. Apt also would be to refer to another decision of the Apex Court in ‘RAMESH HIRACHAND KUNDANMAL’ (Supra), where, the question was of addition of necessary party by the Court, where, the Suit was relating to property and not for declaration of status or legal character.

16. The appellant before the Apex Court was in possession of the service station under an agreement with lessee thereof in his capacity as a dealer. A suit was filed by him challenging the validity of a notice issued by Municipal Corporation for demolition of certain structures raised by it on the premises as being unauthorized. Lessee of the premises sought itself to be impleaded as additional defendant on the ground of being necessary party having material to show that the structures were unauthorized. Service station consisted of petrol pump on the ground floor and a structure was constructed on the open terrace for parking of the trucks. Municipality issued notice for demolishing the same, on the ground that they were unauthorized construction. The appellant instituted a Suit before the City Civil Court at Bombay, challenging the validity of the notice and for injunction restraining the Municipal Corporation from demolishing the structures. The Apex Court observed and held as under:

“6. Sub-rule(2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the 7 plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. 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 on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

7. The opponents do not seriously dispute the position that the second opponent is not a necessary party to the suit in the sense that without their presence an effective order cannot be passed. However, they support the view that opponent No. 2 is a proper party whose presence is necessary for a complete adjudication on the controversy. In the light of the clear language of the Rule, it is not open to the appellant to contend that a person cannot be added as defendant even in a case where his presence is necessary to enable the Court to decide the matter effectively.

8. The case really turns on the true construction of the Rule in particular the meaning of the words “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.” The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.

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14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of 10 the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieget Compagnie S.A. v. Bank of England, (1950) 2 All E.R. 611, that the true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:- “The test is ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.”

17. Yet, another decision is also sought to relied on in ‘SMT. BHAGWANTI v. CUSTODIAN GENERAL’, AIR 1976 (J&K) 29, where, the applicant before the Apex Court was granted lease of operation of the building by the Custodian of Evacuee Property. A writ was filed by someone else relating to that building whereon an interim order was passed by the Court maintaining the status quo, with the result that the applicant was denied possession. He, therefore, sought himself to be impleaded as a party to the writ petition, where, the Apex Court held and observed as under:

“6. It follows, therefore, that the guiding consideration in the matter of addition of parties I whether the Court can, between the parties as arrayed before it, effectively and completely adjudicate upon and settle theq uestions invovled in the case. If the question or questions at issue between the parties can be worked without anyone else being brought in, the stranger should not be added as a party to the litigation. The fact that a stranger may eventually be affected by the judgment or the execution of the decree or order against the defendant or the opponent, as the case may be, is not a cogent ground to make him a party. I am fortified in this view by a decision of the Calcutta High Court in Narayan Chandra Garai v. Matri Bhandar Pvt. Ltd., AIR 1974 Cal 358. In Deputy Commissioner Hardoi in charge Court of Wards Bharawam Estate v. Rama Krishna Narain, AIR 1953 SC 521 at p. 526, their Lordships of the Supreme Court pointed out that the eventual interest of a party in the fruits of the litigation cannot be held to be a true test of impleading the parties according to the Code of Civil Procedure.

7. In Hochtief Gammon v. Industrial Tribunal Bhubaneshwar, AIR 1964 SC 1746 at p. 1750, their Lordships observed:

“The test always must be, is the addition of the party necessary to make adjudication itself effective and enforceable.”

In Fateh Raj v. Suraj Roop, AIR 1969 Raj 252. Jagat Narain, J. after referring to a decision in Amon v. Raphael Tuck and Sons Ltd., (1956) 1 All ER 273 said at p. 253:

“In the above decision a note in the Annual Practice 1955 at page 232 is reproduced which runs as follows:

“Generally speaking intervention can only be insisted upon in three classes of cases, namely (A) In a representative action where the intervener is one of a class whom plaintiff claim to represent. The intervener may say, “deny that plaintiff represents me-add me as a defendant…” (B) Whether the proprietary rights of the intervener are directly affected by the proceedings … © In action claiming the specific performance of contracts where third persons have an interest in the question of the manner in which the contract should be performed.”

Examining the question in the light of the above decisions, Tilak Raj Sharma cannot be deemed to be a proper or a necessary party to the writ petition. That he is incidentally affected by the aforesaid stay order passed by the court or that he may indirectly be affected by the judgment that may eventually be passed in the case or that he is interested in the fruits of the litigation cannot be relevant consideration for making him a party to the petition.”

18. Yet another decision in ‘GOVERNMENT OF ANDHRA PRADESH v. G. JAYA PRASAD RAO’, (2007) 11 SCC 528, where, the validity of amendment made in the statutory rules for granting accelerated promotions was challenged. The government of State of Andhra Pradesh introduced a scheme of ‘Accelerated Promotions’ for police personnel in recognition of their outstanding work in the field of anti-extremist operations. For the said purpose a note being Note 2 was inserted below Rule 3 of the Andhra Pradesh Police (Civil Police) Service Rules, 1998, which provided that the government may consider the cases of deserving Inspectors of Police and Deputy Superintendents of Police (Civil) for accelerated promotions to the next higher ranks in recognition of their outstanding work in the field of anti-extremist operation irrespective of their seniority as an incentive by following the relevant procedure as specified by the government from time to time in this regard. Departmental guidelines were also laid down to check conferring of undue favour. When the allegations were made of some of the persons, who had been given ad hoc promotions under the Scheme of Accelerated Promotions, were not being authorized and that they were permitted to be impleaded as intervenor, where, the Apex Court held that it is not true that where the validity of rules is challenged, it is necessary to implead all the persons, who are likely to be affected as a party-opponent. It is not possible to identify who are likely to be affected and secondly, the question of validity of the rule is a matter which is decided on merit and ultimately, if the rule is held to be valid or invalid, the consequence automatically flows. Therefore, the original applications filed before the Andhra Pradesh Administrative Tribunal or for that matter before the High Court does not suffer from the vice of non-joinder of necessary party.

19. Thus, what emerges from these decisions is that those of them, who fall under the category of the person aggrieved cannot be confined to rigid definition, but can be described broadly and scope of that would depend on content and intent of the statute of which the contravention is complained of, extent and nature of interest of person, kind of prejudice or injury suffered by the person. So far as necessary party is concerned, he is someone without whom, no effective order is passed whereas the proper party is one in whose absence, order can be effectively passed, but, whose presence is required for complete and final decision on the issue involved in the proceedings. The fact that a person may be affected by the judgment or the execution of a decree against the party is also not a ground to make him a party. His being affected incidentally or indirectly or that he is interested in the fruits of litigation also would nor be relevant criteria to consider him for being made a party.

20. It is emphasized all along that the applicant, herein, is a busy body or a meddlesome interloper. In this regard, reliance is also placed on a decision of this Court (Coram: Mr. J.B. Pardiwala, J.) rendered in Criminal Misc. Application No. 12818 of 2014, Dated: 27.04.2015, where the present applicant was one of the parties. However, without entering into those aspects, merely on the ground that the applicant has already moved a separate petition being Special Civil No. 14873 of 2018, whereby, he is seeking the relief of questioning the charging of parking fees, relying on the GDCR rules and also on other grounds coupled with the fact that he also has moved an application being Civil Application No. 1 of 2018 in Writ Petition (PIL) No. 94 of 2018, which is pending before the Division Bench and which is going to come-up for hearing on 25.10.2018, therefore, without dilating the issue, whether the applicant is a proper or necessary party or not or whether he is an aggrieved person from the decisions discussed herein above so as not to affect the rights of the party-in-person, it would not be desirable to decide this aspect in this petition.

21. In other words, when the petitioner has already filed a separate petition and he is pursuing his cause that, itself, is a ground for this Court not to entertain this application. He is also fervently pursuing the PIL, pending before the First Court, which shall be decided on its own merits. This Court has not decided, whether he is a necessary or a proper party. This application of his however is not entertained.

22. Learned Sr. Advocate, Mr. Joshi, has fairly pointed out the decision in ‘AJMERA HOUSING CORPORATION’ (Supra), where similar question had arisen and due to pendency of the litigation the Apex Court had refused to interfere with the impugned order, holding and observing that the issues involved as to assignment of rights, ought to be thrashed out in properly constituted suit and not in an appeal against interlocutory order, since, any decision would prejudice developer in case he files a separate suit.

23. Resultantly, this application fails and is REJECTED.