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Judgment
Mansoor Ahmad Mir, A.C.J.
By this order, we propose to dispose of three Civil Miscellaneous Petitions, being CMP Nos. 20008 of 2013, 20010 of 2013 & 4043 of 2014, filed in CWP No. 8662 of 2013. CMP No. 20008 of 2013 has been filed by the applicants/writ petitioners under Order 1 Rule 10 of the CPC (for short, CPC) for arraying proposed respondents No. 11 to 14 as parties in the array of respondents. CMP No. 20010 of 2013 has been filed under Order 6 Rule 17 CPC for amendment of the writ petition, while CMP No. 4043 of 2014 has been filed under Order 1 Rule 10 CPC for arraying proposed respondent No. 15 as party in the array of respondents.
At the very outset, it may be recorded here that the two applications (CMP Nos. 20008 of 2013 & 20010 of 2013) were decided by this Court, vide order dated 8th January, 2014, which order was challenged by the applicants/writ petitioners before the Apex Court by way of filing Special Leave to Appeal and the Apex Court, vide order dated 14th March, 2014, set aside the order of this Court with a direction to examine the said applications afresh after affording an opportunity to all the parties concerned. During the pendency of the abovesaid applications, the applicants/writ petitioners filed another application under Order 1 Rule 10 of the CPC, (CMP No. 4043 of 2014), for impleading R.D. Nazeem, Registrar of Societies, as party respondent in the array of respondents, in his personal capacity. This is how these applications are before us.
It is also worthwhile to mention here that during the course of hearing of the above applications, learned counsel for the petitioners have not pressed these applications insofar as they relate to proposed respondents No. 12, 13 and 14, since the order dated 26th October, 2013, which was impugned in the writ petition, stands withdrawn by the respondents, rendering the writ petition, to that extent, infructuous, as recorded in the order passed by this Court on 12th May, 2014. Thus, CMP Nos. 20008 of 2013 and 4043 of 2014 now survive for consideration only qua proposed respondent No. 11 (Shri Virbhadra Singh, Chief Minister, State of Himachal Pradesh) and proposed respondent No. 15 (Shri R.D. Nazeem, Registrar of Societies).
Before dealing with the application for leave to amend the writ petition, we deem it proper to take up two applications filed for impleading the proposed respondents No. 11 and 15, in their personal capacity, as parties in the array of respondents.
CMP No. 20008 of 2013 & CMP No. 4043 of 2014:
Firstly, coming to the facts of CMP No. 20008 of 2013, which contains 7 paragraphs in all. Paragraphs No. 1 and 2 are formal one. In paragraphs 3 to 6 of the said application, the applicants have given reasons why the proposed respondents No. 11 to 14, (though application survives only qua respondent No. 11), are necessitated to be arrayed as party respondents in their personal capacity. In paragraph 3, it is averred that the proposed respondent No. 11 was issuing statements in various newspapers leveling allegations against the petitioners and that the decision to take over the possession of the leased land, alongwith buildings, was made with ulterior motive. In paragraph 4, it is alleged that non-applicant/proposed respondent No. 11 had leveled allegations about the irregularities in allotment of lands, construction of hotel and grounds and about change of petitioner-society to company. It is further averred in this paragraph that the learned counsel for the petitioners, during the course of hearing of the application for grant of interim relief, on 5th November, 2013, had raised allegations against the proposed respondents, but the Court had observed that since the said persons were not impleaded as parties, no allegation can be made against them. It is further averred in paragraph 5 that the order, dated 26th October, 2013, came to be made by the State/respondents under the influence of proposed respondent No. 11 and that the proposed respondents No. 12 to 14 have taken steps and executed the said order. In paragraph 6, the applicants have pleaded that the order, dated 28th October, 2013, has been passed by respondent No. 2 i.e. Registrar of Societies under the influence of proposed respondent No. 11.
Now, coming to CMP No. 4043 of 2014, the applicants/writ petitioners have moved this application for arraying the Registrar of Societies as respondent No. 15 in the array of respondents, in his personal capacity. This application contains 9 paragraphs in all. In paragraph 1, the applicants have averred that the grounds taken in the writ petition, be also taken grounds for the present application. Paragraph 2 speaks about the remand order passed by the Apex Court. Paragraphs 3 and 4 are of formal kind and the only averment is to the effect that the applicants/writ petitioners want to implead Shri R.D. Nazeem as respondent No. 15 in his personal capacity. In paragraph 5, it is averred that the proposed respondent No. 15 is acting at the behest of proposed respondent No. 11. In paragraph 6, it is alleged that a technical objection was raised by the respondents-State qua non-arraying of Shri R.D. Nazeem in his individual capacity, therefore, by way of abundant caution, the petitioners are seeking impleadment of the said respondent, who is the only Registrar of Societies in the entire State and has been appearing and filing affidavits by name in the present proceedings. Paragraph 7 contains the details about the conduct of the proposed respondent No. 15, while making the order(s).
Respondents have filed objections to both these applications, in which, it is pleaded that nothing is forthcoming from the writ petition or from the applications, in hand, as to how the proposed respondents No. 11 and 15 have acted with malafide or bias. It is further pleaded that the writ petitioners had not arrayed the said persons as party respondents in the earlier writ petition i.e. CWP No. 7593 of 2013. They have not even alleged any allegation of malafide or bias against the proposed respondents in the main writ petition, thus, the present applications are afterthought. Respondents have further pleaded that the writ petitioners had also opted not to array respondent No. 2 (Registrar of Societies), in his personal capacity, even by means of CMP No. 20008 of 2013, filed in earlier point of time.
In order to determine the controversy in hand, it is necessary to refer to the writ petition. The writ petition contains 56 paragraphs. Paragraph 1 is formal in nature. Paragraph 2 pertains to the impugned orders, dated 26th October, 2013 and 28th October, 2013 (Annexure P-2 and P3, respectively). Paragraphs 3 to 9 pertain to the coming into existence of the Association. Paragraph 10 deals with earlier writ petition, being CWP No. 495 of 2005, wherein, vide order dated 18th May, 2005 (Annexure P-7), respondent No. 5 was directed not to take coercive steps against petitioner No. 1 and its office bearers. Paragraphs 11 to 32 deal with the formation of the Society, its growth, infrastructure and the facts necessary for changing the Society to Company. In paragraph 33, it is stated that petitioner No. 1 made a letter to Registrar whereby intimation was given about the change of the Society to Company. Paragraphs 34 to 45 contain averments about the letters issued to the petitioners by the police, which letters, as pleaded, were issued on the basis of "Congress Charge-sheet", seeking copies of lease deeds executed by the petitioners. Copies of the correspondence between the petitioners and the respondents, in this regard, are placed as Annexure P-29 to P-40. Paragraph 46 contains allegations about the FIR bearing No. 12/2013, dated 1.8.2013, (Annexure P-41), alleged to be a motivated one and came to be registered on the basis of "Congress Charge-sheet". Paragraph 48 contains averments how the ruling regime i.e. present Government is constantly harassing the petitioner-Company and how false case was registered against the writ petitioners. Paragraph 49 speaks about the steps which the petitioners took after conversion of the Society to Company. Paragraph 50 talks about respondent No. 2-Registrar of Societies asking the petitioners that they had not adhered to the provisions of Section 9 of the Himachal Pradesh Societies Registration Act, 2006 and procedure has not been followed as per the law applicable. Paragraph 51 relates to CWP No. 7593 of 2013, whereby Registrar of Societies was asked to consider the objection of the petitioners on the issue of jurisdiction. Paragraphs 52 and 53 contain averments to the effect that the petitioners raised preliminary objections qua the issue of jurisdiction before respondent No. 2. In paragraph 54, it is pleaded that how the order, dated 26th October, 2013, was made and paragraph 55 contains averments in regard to passing of order, dated 28th October, 2013. Nothing is alleged in paragraphs 50 to 54 against the non-applicants/proposed respondents No. 11 and 15 and these paragraphs contain averments in regard to the decision made by the respondent-Registrar of Societies after hearing the parties, in terms of order made by this Court in CWP No. 7593 of 2013. Paragraph 56 contains grounds A to Z, on the basis of which the writ petitioners have sought quashment of orders, dated 26th October, 2013 and 28th October, 2013. In grounds A to F, it is averred how orders are bad and not in accordance with law applicable. Nothing is averred in these grounds against proposed respondent No. 11. No specific averment of bias or malafide is contained in grounds A to F. In ground G, it is contended that respondent No. 2-Registrar of Societies was not only completely biased against the petitioners but had also not made the decision objectively. Ground H talks of connivance of respondents No. 2 and 3 i.e. Registrar of Societies and Principal Secretary (Revenue). Grounds I and J contain averments about CWP No. 495 of 2005 and that petitioner No. 1 was conducting its affairs in a responsible and law abiding manner. Nothing is averred against the proposed respondents No. 11 and 15 in these grounds too. Ground K contains bald averments that the impugned actions are ex-facie absurd, arbitrary and politically motivated. Grounds L to V contain other grounds of attack and no specific allegation of malafide or bias is made. In ground W, it is contended that the impugned actions are contrary to law and completely malafide, arbitrary and having been passed without jurisdiction. Grounds X and Y also deal with the lease deeds, resolution dated 22nd September, 2012, and in ground Z, permission is sought to raise any other grounds at the time of hearing. Paragraph 57 is about the fact that the petitioners had no other efficacious alternative remedy except to file the present petition.
From the above enumeration of facts, as delineated in the writ petition, no specific malafide or bias is averred against the proposed respondent No. 11. No doubt, it is stated in some paragraphs that action of the respondents is on the basis of "Congress Charge-sheet" i.e. ruling Government, but there is nothing specific that it was on the directions of proposed respondent No. 11.
Respondent No. 2 is the Registrar of Societies, who has seized of the matter. However, nothing was alleged against him right from the first day till the filing of the application (CMP No. 4043 of 2014). In the earlier writ petition also, nothing was alleged against the said respondent. The only submission was that he had no jurisdiction to decide the controversy. However, vide order, dated 19.9.2013 (Annexure P-47), passed by this Court, the Registrar of Societies was asked to determine the issue of jurisdiction, which he did in terms of order, dated 28th October, 2013, is the subject matter of the writ petition and no specific allegation is made against him about bias or malafide or that he has made the order in connivance with any other person. The writ petitioners have also not made prayer for arraying him party, in person, in the earlier application i.e. CMP No. 20008 of 2013 and not in the writ petition in hand or in the earlier writ petition, particulars of which are given hereinabove.
In the given circumstances, the sole question to be determined is whether the applications for arraying proposed respondents No. 11 and 15 as party respondents, in their personal capacity, are to be granted or not. The answer is in the negative.
In order to array any person as party, in the array of respondents, on the basis of allegations of malafide and bias, the applicant has to plead and carve out a case that there are grounds which do disclose that the act(s) and action(s) of the said persons are outcome of malafide or bias or has to show that there are grounds to presume that the said party has acted with malafide or bias.
The Apex Court in case State of Punjab Vs. V.K. Khanna and Others, has held that general allegation of personal vendetta, malafides or bias, without any definite evidence therefor, cannot be said to be sufficient to accept the same. It is further held that there must be a positive evidence available on record in order to deprecate an administrative action on the ground of mala fides. It is apt to reproduce paragraph 25 of the said decision, which reads as under:
Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and malafide move creep in-issuance of the two notifications assuming in hot haste but no particulars of any malafides move or action has been brought out on record on the part of Shri V.K. Khanna-while it is true that the notings prepared for Advocate General''s opinion contain a definite remark about the malafide move on the part of Shri V.K. Khanna yet there is singular absence of any particulars without which the case of malafides cannot be sustained. The expression ''malafide'' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bonafide-actions not otherwise bonafide, however, by themselves would not amount to be malafide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act.
The Apex Court in case titled as Ratnagiri Gas and Power Pvt. Ltd. Vs. RDS Projects Ltd. and Others, , has held that the law casts a heavy burden on the person alleging malafides to prove the same on the basis of facts that are either admitted or satisfactorily established. It is further held that vague and general allegations not supported by requisite particulars do not provide a sound basis for the Court to conduct an inquiry into their veracity. Paragraphs 25 and 26 are relevant and are being reproduced hereunder:
Even otherwise the findings recorded by the High Court on the question of mala fides do not appear to us to be factually or legally sustainable. While we do not consider it necessary to delve deep into this aspect of the controversy, we may point out that allegations of mala fides are more easily made than proved. The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity. The legal position in this regard is fairly well-settled by a long line of decisions of this Court. We may briefly refer to only some of them.
In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, , this Court summed up the law on the subject in the following words:
''Mala fides'' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.
(emphasis supplied)
26.2. We may also refer to the decision of this Court in Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, where the Court declared that allegations of mala fides need proof of high degree and that an administrative action is presumed to be bona fide unless the contrary is satisfactorily established. The Court observed:
......... It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ''very heavy''. (vide E.P. Royappa Vs. State of Tamil Nadu and Another, ) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa and Others Vs. The State of Maharashtra and Others, : ''It (mala fide) is the last refuge of a losing litigant.
The Apex Court, in a recent case titled as Mutha Associates and Others Vs. State of Maharashtra and Others, , has laid down principles and held that vague and general averments would not be suffice for the court to go into the veracity of the allegations leveled. There must be some specific allegation and supported by necessary particulars. It is apt to reproduce paragraphs 41, 42, 43, 44, 45, 46, 47 and 48 of the said decision hereunder:
It was contended by Mr. Bobde that the High Court went wrong in attributing motives to the Minister without there being any specific charge, material or particulars to support the same. The mere fact that an order passed by a constitutional or statutory authority was found to be legally unsustainable did not ipso facto mean that the order was malafide in that the authority had passed the same for any extraneous or other consideration. Reliance in support was placed by Mr. Bobde upon a series of decisions of this Court, in which the need for the Court examining a charge of malafides to be circumspect and the standard of proof required for holding the charge proved have been laid down. The case at hand did not, argued Mr. Bobde, satisfy the said requirements and standards, rendering the order passed by the High Court unsustainable.
The law regarding pleading and proof of "malice in fact" or malafides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognise the requirement of allegations suggesting "malice in fact" to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken malafide would not therefore suffice. Equally well settled is the principle that the burden to establish that the action under challenge was indeed malafide rests heavily upon the person making the charge; which is taken as quasi criminal in nature and can lead to adverse consequence for the person who is proved to have acted malafide. There is in fact a presumption that the public authority acted bonafide and in good faith. That presumption can no doubt be rebutted by the person making the change but only on cogent and satisfactory proof whether direct or circumstantial or on admitted facts that may support an inference that the action lacked bonafides and was for that reason vitiated. The third principle equally sanctified by judicial pronouncements is that the person against whom the charge is made must be impleaded as a party to the proceedings and given an opportunity to refute the charge against him. We may at this stage refer to a few decisions to illustrate the above for a copious reference to all the pronouncements is unnecessary and can be avoided.
In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, , this Court explained the juristic significance of malafides and the questions that need to be determined while examining plea based on malafides. The following passage is apposite in this regard:
Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.
That the allegations of malafides would require a high degree of proof to rebut the presumption that administrative action has been taken bonafide was laid down as one of the principles governing burden of proof of allegations of malafides levelled by an aggrieved party. The Court in Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, observed thus:
......... It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ''very heavy''. (vide E.P. Royappa Vs. State of Tamil Nadu and Another, ) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa and Others Vs. The State of Maharashtra and Others, : ''It (mala fide) is the last refuge of a losing litigant''.
In State of M.P. and Others Vs. Nandlal Jaiswal and Others, , this Court laid emphasis on the need for furnishing full particulars of allegations suggesting malafides. The use of words such as "malafides", "corruption" and "corrupt practice" was held to be insufficient to necessitate an enquiry into such allegations. The Court observed:
Before we part with this case we must express our strong disapproval of the observations made by B.M. Lai, J. in paras 1, 9, 17, 18, 19 and 34 of his concurring opinion. The learned Judge made sweeping observations attributing mala fides, corruption and underhand dealing to the State Government. These observations are in our opinion not at all justified by the record. In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as ''mala fide'', ''corruption'' and ''corrupt practice'' but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing.
To the same effect is the decision of this Court in Swaran Lata Vs. Union of India and Others, , the Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides.
In Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, , this Court held that even when the Court examining the validity of an action may find a circumstance to be disturbing it cannot uphold the plea of malafides on ground of mere probabilities. A note of caution was similarly sounded by this Court in E.P. Royappa Vs. State of Tamil Nadu and Another, , where the Court held that it ought to be slow to draw dubious inferences from incomplete facts particularly when imputations are grave and they are made against the holder of an office which has high responsibility in the administration. The following passage from the decision is apposite:
Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up-these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.
The charge of malafides levelled against the appellant Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of "malice in fact" levelled against the minister proved.
Coming to the facts of the present case, it is averred in these applications and also in the writ petition that the action of the proposed respondents is politically motivated and there is bias, though no specific allegation is made against any person in the writ petition, except vague, general and bald allegations.
In case titled as Tara Chand Khatri Vs. Municipal Corporation of Delhi and Others, , the Apex Court expounded certain tests as to when an action can be said to be malafide one. It is apt to reproduce paragraph 29 of the said decision as under:
This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents. We are unable to accept this contention. It has been held time and again by this Court that the High Court would be justified in refusing to carry on investigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition. Keeping in view the well established rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus. The High Court was therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out.
The Apex Court in another decision rendered in case Chandra Prakash Singh and Others Vs. Chairman, Purvanchal Gramin Bank and Others, , has held that mere allegation of malafide is not enough and the party who makes allegation of malafides has to place on record specific details, as the same cannot be presumed. It is apt to reproduce paragraph 34 hereunder:
Thus, as a proposition of law, the burden of proving mala fide is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically and definitely alleged in the petition as the same cannot merely be presumed. The presumption under law is in favor of the bona fides of the order unless contradicted by acceptable material.
The Apex Court in Misbah Alam Shaikh Vs. State of Maharashtra and another, , has observed in paragraph 4 as under:
It is not in dispute that the State Commission for Minorities was constituted by the earlier Government of Maharashtra and it came to be abolished by the successor political party in power. It is contended by Shri M.N. Shroff, learned counsel for the appellant that the decision taken by the State Government is mala fide. We find no force in the contention.
Applying the test to the instant case, no case for enquiry or trial is made out, keeping in view the given facts of the present case.
While making discussions hereinabove, it is observed that the writ petitioners have not arrayed the proposed respondents No. 11 and 15 in the array of respondents, at the first instance. It is only when the Court made some observations, the writ petitioners filed the present applications for arraying the proposed respondents as party in the writ petition. Moreover, in the earlier writ petition, being CWP No. 7593 of 2013, the writ petitioners had chosen not to array the proposed respondents as party. Thus, it can safely be said and held that such act on the part of the writ petitioners amounts to waiver. Our this view is fortified by the decision of the Apex Court in case State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., . It is apt to reproduce paragraphs 21 to 25 as under:
In Manak Lal Vs. Dr. Prem Chand, , this Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection.
Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.
Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. (See: Pannalal Binjraj Vs. Union of india (UOI), ; and Justice P.D. Dinakaran (Supra))
In Power Control Appliances and Others Vs. Sumeet Machines Pvt. Ltd., this Court held as under:-
Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent with the claim... It implies positive acts; not merely silence or inaction such as involved in laches......... The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant......
Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy and Company (P) Ltd. Vs. John P. Thomas, . Thus, the Court has to examine the facts and circumstances in an individual case.
Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide: AIR 1935 79 (Privy Council); Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, ; Madamsetty Satyanarayana Vs. G. Yellogi Rao and Others, ; Associated Hotels of India Ltd., Delhi Vs. S.B. Sardar Ranjit Singh, ; Jaswant Singh Mathurasingh and another Vs. Ahmedabad Municipal Corporation and others, ; M/s. Sikkim Subba Associates Vs. State of Sikkim, ; and Krishna Bahadur Vs. Purna Theatre and Others, ).
This Court in Municipal Corporation of Greater Bombay Vs. Dr. Hakimwadi Tenants'' Association and Others, considered the issue of waiver/acquiescence by the non-parties to the proceedings and held:
In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.......
There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights, by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.
Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias etc., surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party. Needless to say that question of waiver/acquiescence would arise in a case provided the person apprehending the bias/prejudice is a party to the case. The question of waiver would not arise against a person who is not a party to the case as such person has no opportunity to raise the issue of bias.
As discussed hereinabove, firstly, in the writ petition, there is nothing against proposed respondents No. 11 and 15 and otherwise also, the writ petitioners are caught by the waiver and entire exercise appears to be afterthought.
It is worthwhile to mention here that virtually the writ petitioners have alleged malafide/bias on the basis of the order, dated 26th October, 2013, but the said order stands withdrawn and the writ petition has become infructuous insofar as it relates to that relief and also the applications stand dismissed so far as they relate to arraying the proposed respondents/non-applicants No. 12, 13 and 14, who had issued the order and made compliance thereof.
As recorded hereinabove, the averments contained in CMP No. 20008 of 2013, read with the writ petition, are to be seen only qua proposed respondent No. 11. No specific averment has been made against him, which can be termed as bias or malafide, except bald, vague and afterthought allegations, that too, without furnishing necessary particulars.
Respondent No. 2-Registrar of Societies has/had to exercise powers as authority in terms of the provisions of law and pass orders in order to determine a lis. It is beaten law of the land that if any statutory authority passes order(s) in breach of principles of natural justice or is/are illegal and suffer(s) from irregularity(ies), that cannot be a ground to hold that the order(s) is/are outcome of malafide or bias. The Apex Court in case titled as Mutha Associates and others vs. State of Maharashtra and others (supra), has laid similar principles. It is apt to reproduce paragraphs 49 and 50 of the said decision as under:
It is true that the High Court has enumerated certain stark irregularities in the decision making process or the use of material obtained on behalf of (sic behind) the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the minister yet those irregularities do not inevitably lead to the conclusion that the minister had acted malafide. Failure to abide by the principles of natural justice are consideration of material not disclose to a party or non-application of mind, to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bonafide and in good faith.
It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister appellant in Civil Appeals No. 2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of malafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No. 2856 and 2857 of 2002 allowed.
Viewed thus, no prima facie case is made out for arraying the proposed respondents as party/parties in the array of respondents. Thus, both the applications are dismissed.
CMP No. 20010 of 2013:
This application has been filed under Order 6 Rule 17 CPC, whereby the writ petitioners have sought leave to amend the writ petition, on the grounds taken in the memo of the application, which contains (xxi) paragraphs. By the medium of paragraphs (i) to (vi), amendment is sought in the synopsis and the chronological list of events.
The writ petition, as discussed hereinabove, contains 56 paragraphs and in terms of Order 6 Rule 17 CPC, the amendment can be made of the pleadings. It is apt to reproduce Order 6 Rule 17 of the CPC hereunder:
Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
While going through the above reproduced provision of law, one comes to the inescapable conclusion that leave to amendment has to be sought of pleadings. Order 6 Rule 1 CPC defines pleadings, as under:
Pleading.-"Pleading" shall mean plaint or written statement.
As per the mandate of Order 6 Rule 1 CPC, the pleadings include plaint and written statement. But, by development of law, the rejoinder is also pleading. Viewed thus, by no stretch of imagination, synopsis and chronological list of events can be said to be the "pleadings".
Paragraph (vii) to (xxi) relate to the writ petition. In paragraph (vii) the amendment of memo of parties is sought. By paragraphs (viii), (ix), (x), (xii), (xvii), (xviii) and (xxi) some words are sought to be inserted in relevant paragraphs of the writ petition. In terms of paragraph (xi), amendment is sought of paragraph 45 of the writ petition and that deals with lodging of FIR because of political vendetta on the instructions of proposed respondent No. 11 and some part of it deals with impugned order dated 26th October, 2013. Paragraph (xiii) deals with the amendment in paragraph 48 of the writ petition for inserting the paragraph after the words "Annexure P-44", which amendment relates to proposed respondent No. 11. In paragraphs (xiv) and (xvi), amendment is sought for incorporating paragraph 53-A and 54-A & 54-B, respectively, which relate to proposed respondent No. 11 and order dated 26th October, 2013. In paragraph (xix) amendment is sought for inserting/adding paragraph 55-A after paragraph 55. In paragraph (xx), it is prayed that in paragraph 56, grounds ''B-1'' to ''B-8'', after ground ''B'', are to be added/inserted. The proposed amendment in paragraph 56, i.e. B-1 to B-7, deals with the order dated 26th October, 2013 and also relates to proposed respondents No. 12 to 14. In paragraph ''B-8'' amendment is sought to the effect that the provisions of H.P. Societies Registration Act, 2006 are not applicable to petitioner No. 1, which is a legal ground.
The question is whether the amendment sought, in view of the subsequent developments and decision made hereinabove, has to be granted or otherwise. Decision on a petition under Order 6 Rule 17 CPC is a serious judicial exercise and the said exercise has to be undertaken keeping in view the facts of each case, read with the law laid down by the Apex Court and various High Courts. We deem it proper to reproduce paragraphs 61, 62, 63, 64, 66, 67, 68, 69 and 70 of the decision of the Apex Court in case Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , hereunder:
Whether Amendment is Necessary to Decide Real Controversy:
The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts'' discretion in grant or refusal of the amendment.
No Prejudice Or Injustice To other Party:
The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
The Courts have very wide discretion in the matter of amendment of pleadings but court''s powers must be exercised judiciously and with great care.
In Ganga Bai''s case (supra), this Court has rightly observed:
The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.
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The purpose of imposing costs is to:
(a) Discourage malafide amendments designed to delay the legal proceedings;
(b) Compensate the other party for the de-lay and the inconvenience caused;
(c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
(d) To send a clear message that the parties have to be careful while drafting the original pleadings.
Factors to be Taken Into Consideration While Dealing with Applications for Amendments:
On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
The subsequent order, dated 19th November 2013, passed by the respondents-State, whereby the order dated 26th October, 2013, impugned in the writ petition, stands withdrawn, and the order dated 12th May, 2014, passed by this Court, whereby the applications for impleadment were rejected as not pressed qua proposed respondents No. 12 to 14, have rendered this application, so far as it relates to order dated 26th October, 2013 and proposed respondents No. 12 to 14, as infructuous.
The application in hand also merits to be rejected so far as it relates to the proposed respondents No. 11 and 15, in view of the discussion made hereinabove, whereunder the applications for impleadment of proposed respondents No. 11 and 15 stand dismissed.
Keeping in view the facts of the case, discussion made hereinabove, read with the tests (supra), laid down by the Apex Court, the application is to be allowed only so far as it relates to paragraphs (viii), (ix), (x), (xii), (xvii), (xviii), {xx(B-8)} and (xxi).
Having said so, this application is partly allowed and partly dismissed, as indicated above. The writ petitioners to file amended writ petition within one week.
CMP No. 21039 of 2013:
This application is made by respondent No. 2 for vacation/modification of the order, dated 5th November, 2013, enabling him to decide the lis and the controversy finally pending before him. We deem it proper to hear and decide the application in hand after the amended petition is filed.
List main writ petition alongwith CMP No. 21039 of 2013 on 18th June, 2014.