CA/6998/2008 10/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR JOINING PARTY No. 6998 of 2008 In SPECIAL CIVIL APPLICATION No. 6337 of 2008 With CIVIL APPLICATION No. 6999 of 2008 In SPECIAL CIVIL APPLICATION No. 6339 of 2008 With CIVIL APPLICATION No. 7001 of 2008 In SPECIAL CIVIL APPLICATION No. 6338 of 2008 With CIVIL APPLICATION No. 7023 of 2008 In SPECIAL CIVIL APPLICATION No. 4934 of 2008 With CIVIL APPLICATION No. 7022 of 2008 In SPECIAL CIVIL APPLICATION No. 17569 of 2003 ========================================================= GUJARAT MINERAL DEVELOPMENT CORPORATION - Petitioner(s) Versus PUSHPABEN P MAKHECHA & 3 - Respondent(s) ========================================================= Appearance : CIVIL APPLICATION Nos. 6998, 6999, 7001 & 7023/2008. MR DIPEN C SHAH for Petitioner(s) : 1, MR MIHIR THAKORE Ld. SENIOR ADVOCATE with MR RAKESH GUPTA with MR KUNAL NAIK for M/S TRIVEDI & GUPTA for Respondent(s) : 1, MR SUNIT SHAH Ld. GOVERNMENT PLEADER for Respondent(s) : 2, None for Respondent(s) : 3 ý 4. CIVIL APPLICATION NO. 7022/2008 MR DIPEN C SHAH for petitioner(s) MR PM THAKKAR LD. SENIOR ADVOCATE with Mr NAVIN PAHWA for respondent(s): 1, Mr SUNIT SHAH Ld. GOVERNMENT PLEADER for respondent(s):2, None for Respondent(s) : 3 ý 4 ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/07/2008 COMMON ORAL ORDER
1. All
these Civil Applications have been filed by the applicant to join the
applicant- Corporation as party respondent in the main petitions.
Since the facts of all the applications are identical, they are heard
together and disposed of by this common order.
2. It
is the case of the present applicant that the present applicant is a
company incorporated under Companies Act, 1956, a body corporate
having a common seal and perpectual succession. The applicant company
is a public sector undertaking of the Government of Gujarat,
incorporated to scientifically exploit the mines and mineral reserves
within the State of Gujarat and to conserve the mineral containing
lands and to achieve maximum production of minerals without
disturbing or destroying the rich reserves in the underlying layers
of earth, thereby raising maximum revenue which is the object of the
Part IV of the Constitution of India.
3. It
is further the case of the applicant that respondent ý ori.
Petitioners are awarded mining lease for plant grade bauxite as well
as for non-plant grade bauxite, the said mining lease is only for the
captive consumption of the requirement of the opponent no. 1 ý
petitioner and not for the purpose of export. That the Government is
not bound to give permission for the export of the said mineral, and
is well within its discretion to permit public Corporation to
procure by sale or otherwise the said excavated plant grade bauxite
for the purpose of value addition and for utilising the State
resources to realise the goals enshrined in the directive principles
of the State policy pertaining to utilisation of State resources in a
manner which is likely to generate maximum employment opportunities
within the State. The applicant states that the applicant has
entered into MOU dated 17.8.2007 and 17.7.2007 with Ashapura Minechem
Ltd and Aluchem Inc, USA, respectively, ensuring long term supply of
Non-plant Grade Bauxite, with the intention to attract large
industrial investments within the State. That it is the solemn
obligation of the applicant ý Corporation to oblige and perform the
conditions of contract with Aluchem Inc, USA which are establishing
industry within the State of Gujarat and bringing about the
investment of Rs. 2500/- crores. It is further stated that there is a
shortfall in availability of Non-plant Grade bauxite within the State
of Gujarat. It is submitted that applicant has promised supply of
Non-Plant Grade bauxite to Ashapura Minechem and Aluchem Inc., USA
for the whole plant life under which a total supply of 127 Million
ton will have to be ensured and the total reserves of Non-plant Grade
bauxite within the Gujarat State is approximately 129.48 Million Ton,
out of which, more than 40%, i.e., approximately 50 million ton
reserves are located in Jamnagar mines. It is submitted that ori.
petitioners have exported certain tons of Non-plant grade bauxite in
the year 2007-2008. Hence, if the export of precious State resources
are made at this rate, it is very likely that all mines within
Jamnagar will get exhausted frustrating the applicants contract with
Aluchem Inc,USA and Ashapura Minechem. Moreover, permitting export of
minerals is major loss to public exchequer and hence it is desirable
that State resources are employed in such a manner so as to attract
investment within the State. The applicant – Corporation intends to
secure the reserves of non-plant grade bauxite within Gujarat for its
upcoming projects for which the State Government is likely to form
the policy of preventing export at the cost of domestic social and
economic development of State. So, the present applicant is likely to
prejudice its right as once the export is executed, the situation
will be irreversible.
4. Learned
advocate Mr. Dipen C. Shah for the applicant contended that it is
very likely that any orders which may be passed in the main
petitions may come in the way of the Government forming the policy
for regulating export of non-plant grade bauxite and may be perceived
as an exception to policy of State ensuring that quantity of bauxite
may first be made available to local industries, and after satisfying
their requirements at domestic level, only excess mineral should be
exported. It is further submitted that in such a contingency
applicant ý Corporation is likely to incur considerable loss in
failing to honour its commitment under the contract on account of
scarcity of precious mineral like non-plant grade bauxite. It is
stated that the prayer in the petition seeking declaration that
petitioners can also export without permission of Government and that
Government has no right to impede the export of bauxite by
petitioners may cause serious prejudice to the applicant ý
corporation and therefore, the applicant may be joined as party
respondent in all the main petitions.
5. It
is also contended by the learned advocate Mr Dipen C Shah for the
applicant that the applicant is necessary and proper party to the
said petitions and any order which may be passed in the said
petitions directing the State Government to grant necessary
permission to the petitioners to export or to decide any pending
application of the petitioner would likely to affect the interest of
the applicant ý Corporation.
6. Mr.
Dipen C Shah learned advocate for the applicant has drawn the
attention of this Court to the affidavit-in-reply filed on behalf of
respondent no. 1 – ori. Petitioner, at page 11, and contended that
MoUs are not disputed and this gives right to the present applicant
to be joined as party respondent in the main petitions. He relied
upon the decision of the Apex Court in the case of Fertilizer
Corporation Kamagar Union (Regd.) Sindri & Ors. vs. Union of
India and Ors, reported in AIR 1981 SC p. 344.
7. Mr
Mihir Thakore learned Senior Advocate for the respondent ý Ori.
Petitioner has contended that in the event of non-availability of
raw-material, serious consequences will arise. Even the Government
has also prohibited the export of raw-material and the petitioner has
challenged that order. He has also drawn the attention of this court
to the Government Resolution dated 4.2.2005 at page nos. 19 and 20.
He has further submitted that the present applicant
can prefer a petition. It is further argued by learned Senior Counsel
Mr. Mihir Thakore that in the application itself, it is mentioned
that the applicant ý Corporation intends to secure the reserves of
non-plant grade bauxite within Gujarat for its upcoming projects for
which the State Government is most likely to form the policy of
preventing export at the cost of domestic social and economic
development of State, but no project, till today, is established and
there is no such policy of the Government, in existence. It is also
argued that the applicant has not produced anything on record to show
its rights on reserves of non-plant grade bauxite and no plant is
established till today and everything is in air and the applicant has
come before this Court only with MOU and the said MOU is also not
executed with the Government. Mr Thakore has also read para-3 of
the memo of application and argued that applicant has entered into
MOU dated 17.8.2007 and 17.7.2007 with Ashapura Minechem Ltd and
Aluchem Inc, USA. It is further argued that the Notification is under
challenge. He has read the prayer made in this application and argued
that he has challenged the order of Government and the present
applicant ý Corporation is not a relevant party as the petitioner
has not prayed any relief against the present applicant ý
Corporation and the application preferred by the applicant is not
bonafide and required to be dismissed. Mr. Thakore has relied upon
the decision of the Apex Court in the case of Ramesh Hirachand
Kundanmal vs. Municipal Corporation of Greater Bombay and Ors.,
reported in (1992)2 SCC p. 524 and argued that the applicant
is not a proper party and it has no direct interest and writ is a
private writ between two parties and, therefore, the applicant has
no right to join as party ý respondent. He has fairly argued that
the applicant can file a separate petition.
8. In
Civil Application No. 7022/2008 Mr. PM Thakkar learned Senior
Advocate appeared for the respondent and argued that the all mines
and minerals are controlled by the Central Government and it is
falling under Schedule-II. He read Rule-22 of the Mines and Minerals
(Development and Regulation) Act, 1957. It is also contended by Mr.
Thakkar that he has filed the petition for the reasons that the
State Government has denied to collect ad hoc royalty on minerals.
It is also argued by Mr. Thakkar that during the pendency of the
petition, the applicant ý Corporation has filed this application
for joining it as party respondent in the main petitions. Mr Thakkar
has also contended that the respondent ý ori. Petitioner is a local
Industrial Association and the present applicant has no concern with
it and paternal agency (State) is defending and opposing the present
petitions, yet the State Government is only a second agency and
original agency is Central Government. Mr. Thakkar submits that he
is adopting and relying upon the contentions raised and submissions
made by learned Senior Advocate Mr. Thakore.
9. I
have gone through the papers of all the civil applications and main
petitions as well as the citations relied upon. It is true that in
the case of Fertilizer Corporation Kamgar Union vs. Union of
India, reported in AIR 1981 SC p. 344, the Hon’ble Apex
Court, in para-48, has observed as under:
ýS48.
If a citizen is no more than a way-farer or officous intervener
without any interest or concern beyond what belongs to any one of the
660 million people of this country, the door of the Court will not
be ajar for him. But he belongs to an organisation which has special
interest in the subject matter, if he has some concern deeper than
that of a busybody, he cannot be told off at the gates, although
whether the issue raised by him is justiciable may still remain to be
considered. I, therefore, take the view that the present petition
would clearly have been permissible under Article 226.ýý
10. No
doubt, the said observation is binding to all subordinate Courts, but
so far as the question of joining party is concerned, Civil
Procedure Code is a law and procedure of Civil Procedure Code is
required to be followed. It is true that this is not a public
interest litigation but it is filed by the private parties. It is
true that learned Senior Counsel Mr. Thakore has relied on the
judgment of the Apex Court in the case of Ramesh Hirachand
Kundanmal vs. Municipal Corporation of Greater Bombay and ors.,
reported in (1992)2 SCC 524, wherein, the Hon’ble Supreme
Court has laid down a ratio that in the question of addition of
necessary party, the Court has judicial discretion which it has to
exercise having regard to the facts and circumstances of the case and
while exercising discretion, the court can direct the plaintiff,
though dominus litis, to implead a person as a necessary
party-defendant. Mr. Mihir Thakore and Mr PM Thakkar learned Seniour
Advocates have argued that the present applicant is not a necessary
and proper party and, therefore, court cannot use discretion in
connection of addition of the necessary party in favour of the
present applicant.
11. It
is true that the dispute is between the respondent ý ori.
Petitioner and State Government. As per the provisions of Code of
Civil Procedure, it is always open for the petitioner to implead such
a party as it deems fit and proper and when a party is not necessary
or proper party and its presence is not necessary for determining
the issue between the parties, then, such a party has no right to
join itself as a party respondent in such type of proceedings. It
appears from the submissions made by the learned counsel for the
respondents -ori. Petitioners that the present applicant is merely to
see that the petition must be properly defended, but GMDC cannot be
heard in such type of matters when the State Government is already
there.
12. From
the above discussion and observation, the question as to whether a
person should be joined to the petition or not depends upon the
nature of the petition and averments made in the petition. From the
contents of the Special Civil Applications, it appears that the
present opponents (Ori. Petitioners) have not prayed any relief
against the present applicant ý GMDC. The applicant cannot be added
as party respondent merely because it would be incidently affected by
the judgment and order. It is established by the opponents as well as
applicant that no prayer has been made against the present applicant
in the main petitions and it also appears that the applicant ý
Corporation is neither a necessary nor proper party.
13. In
view of the above discussions, all these Civil Applications stand
dismissed.
(Z.K.
SAIYED, J.)
mandora/