Kamla Devi And Ors vs National Monument Authority Of India And Ors

This appeal is directed against the order dated 2.7.18 passed by learned Single Judge of this Court in S.B.Civil Writ Petition No.9576/2017, whereby an application preferred by the fourth respondent for impleading him as party to the writ petition has been allowed. The appellants have also questioned legality of the order dated 18.7.18 passed by the learned Single Judge rejecting the application preferred on their behalf for recalling the order dated 2.7.18.

The facts relevant are that the appellants preferred a writ petition questioning the legality of decision taken by the National Monuments Authority ("NMA") in its meeting held on 20th & 21st June, 2017, withdrawing the NOC issued in favour of the appellants for raising construction and directing Archeological Survey of India ("ASI") to initiate proceedings as per law for removal of unauthorized construction. The legality of the notice dated 25.7.17 issued by Superintending Archeologist, ASI, Jodhpur Division Jodhpur pursuant to the said decision of NMA, directing the appellants to remove the construction raised, is also impugned in the petition filed.

During the pendency of the petition, the applicant Jayant Panchal, the fourth respondent herein, filed an application for impleading him as party respondent. It was averred in the application that the NOC for raising construction was issued to the appellants without complying with the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 ("Act of 1958") and the appellants have raised construction violating the NOC issued. The legality of the action of the official respondents in issuing NOC and permitting the construction at the site which is protected under the Act of 1958, was questioned by the applicant by way of a suit before civil court of competent jurisdiction. According to the applicant, the action against the appellants in withdrawing the NOC and directing removal of the unauthorized construction was taken by the official respondents, taking into consideration the complaint made and suit filed on his behalf and therefore, he deserves to be impleaded as party respondent in the matter.

Vide order dated 4.5.18, the appellants were granted four weeks time to file reply to the application preferred by the fourth respondent for impleading him as party respondent. Admittedly, no reply to the application was filed on behalf of the appellants. The application was taken up for consideration by the learned Single Judge of this Court on 2.7.18. The learned Single Judge noticed that no reply to the application has been filed even after lapse of about eight weeks. Nobody was present on behalf of the appellants when the application was taken up for consideration by the Court. Consequently, after due consideration, the application was allowed by the learned Single Judge by order impugned dated 2.7.18. The appellants preferred an application for recalling the order, which has also been dismissed by the learned Single Judge vide order dated 18.7.18. Hence, this special appeal.

Learned counsel appearing for the appellants contended that the application was allowed by the learned Single Judge without consideration on merits and without extending an opportunity of hearing to the appellants. Learned counsel submitted that the suit preferred by the fourth respondent had already been rejected by the civil court vide order dated 9.3.18 under Order VII Rule 11 CPC, however, the factum of rejection of the plaint was not brought to the notice of the learned Single Judge by the fourth respondent. Learned counsel submitted that atleast while deciding the application preferred by the appellants for recalling the order dated 2.7.18, the learned Single Judge should have taken note of the factum of rejection of the plaint. Learned counsel submitted that the appellants have not raised any construction in violation of NOC and the norms laid down. Learned counsel would submit that merely because the action against the appellants has been taken on the basis of the complaint made on behalf of the fourth respondent, he does not acquire any right to intermeddle in the petition filed by the appellants questioning the arbitrary action of the official respondents and thus, the learned Single Judge has seriously erred in allowing the application preferred by the fourth respondent for impleading him as party to the proceedings.

On the other hand, counsel appearing for the fourth respondent submitted that as per the averments made in the writ petition, the action against the appellants has been taken by the official respondents on the basis of the complaint made and the suit filed by the fourth respondent and thus, the order impugned passed by the learned Single Judge taking into consideration the facts narrated in the application seeking impleadment, is just and proper. Learned counsel submitted that even if the fourth respondent is not considered to be necessary party in the matter, he is certainly a proper party in the matter and therefore, there is absolutely no reason why the order passed by the learned Single impleading fourth respondent as party respondent to the proceedings should be interfered with by this Court in intra court appeal jurisdiction.

We have considered the rival submissions and perused the material on record.

Indisputably, the appellants were permitted to raise construction at the disputed site regulated by the provisions of the Act of 1958 and the legality of the action of the official respondents in issuing NOC and permitting the construction was questioned by the fourth respondent by lodging a complaint and thereafter by filing a civil suit seeking permanent injunction accompanied by an application seeking temporary injunction. A bare perusal of the letter dated 14.7.17 (Annexure-11) reveals that the decision to withdraw the NOC issued in favour of the appellants was taken by the NMA taking into consideration the complaint and the suit filed on behalf of the fourth respondent. As a matter of fact, in the petition filed, the appellants have specifically averred that the action as aforesaid was taken against the appellants on the basis of false complaint made by their rival Shri Jayant Panchal, the fourth respondent herein. That apart, the appellants in the writ petition have projected that the complaint lodged by the fourth respondent herein, was fraudulent.

It is not disputed that no reply to the application was filed by the appellants till the time the same was taken up for consideration by the learned Single Judge and thus, the averments made therein remained uncontroverted. Apparently, the appellants were negligent in pursuing the matter inasmuch as they did not choose to file reply to the application despite opportunity being granted and even did not remain present before the learned Single Judge at the time of hearing on the application.

It is settled law that the Court, at any stage of the proceedings, may permit the impleadment of the party whose presence is considered necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the lis pending.

In view of the discussion above, in our considered opinion, taking into consideration the facts and circumstances of the case, if the learned Single Judge exercising his judicial discretion has considered it appropriate to implead the fourth respondent as party to the proceedings for effectual and complete adjudication of the controversy involved, the order impugned passed does not warrant any interference by us in exercise of the intra court appeal jurisdiction.

In the result, the special appeal fails, it is hereby dismissed. No order as to costs.