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Judgment
Shekhar B. Saraf, J
This is an application for addition of party made by a person who is a Nepalese importer of goods through the ports of Vishakapatnam and Kolkata.
The challenge in the writ petition is a public notice that had been issued with regard to a pilot project for bringing about a change in the transit procedure for goods that land in India and are to go to Nepal. In the present writ petition, the main challenge is with respect to the power of the Authority issuing the public notice and whether the said public notice has been issued in terms of the Customs Act, 1962 read with the Treaty of Transit between the Government of Nepal and Government of India, as well as the memorandum of protocol to the treaty of transit between Nepal and India.
Mr. Joydip Kar, learned Senior Advocate appearing on behalf of the applicant submitted that the applicant is utilising the transit facility prescribed in the impugned notice under challenge, and as a beneficiary, the applicant would be adversely affected in case any adverse order is passed in the writ petition striking down the said impugned notice. He further submitted that the issues challenged in the instant writ petition affects the right of the applicant and it is essential to hear out a Nepalese importer, who is the main beneficiary of the trade policy between the two Governments. Mr. Kar further submitted that the writ petition was not maintainable due to the fact that the petitioner was an association and as such the petitioner could not maintain the writ petition. Mr. Kar further submitted that the applicant is directly impacted by the policy change that has been affected by the impugned public notice and accordingly has an implicit right to be added as a party. He further submitted that it is important for the Court to hear the perspective of the importers from Nepal as the public notice clearly relates to the transit of goods from India to Nepal.
Mr. Kar relied on the decisions in the cases of Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar and Anr., reported in 1963 Supp (1) SCR 676 : AIR 1963 SC 786; Mukund Shah Vs. M/s. Golden Plyester Industries Pvt. Lt., reported in 1979 (1) CLJ 258; Razia Begum Vs. Sahebzadi Anwar Begum and Ors., reported in 1959 SCR 1111 : AIR 1958 SC 886; Competition Commission of India Vs. Steel Authority of India Ltd. and Anr., reported in (2010) 10 SCC 744; Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Ors., reported in (2010) 7 SCC 417; and Vidur Impex and Traders Pvt. Ltd. and Ors. Vs. Tosh Apartments Pvt. Ltd. and Ors, reported in (2012) 8 SCC 384 to buttress his argument that a party who is directly impacted, even though not a necessary party, would have a right to be impleaded as a proper party. He, however, conceded that in such issues the court has discretion but such discretion is required to be exercised judiciously following the principles laid down in the above judgments.
Dr. Samir Chakraborty, learned Senior Advocate appearing on behalf of the petitioner in this writ petition vehemently opposed the addition of the applicant on the ground that the challenge in the writ petition is not with respect to any policy of the Government of India but is a challenge to a public notice being de hors the Customs Act, 1962. Dr. Chakraborty submitted that the public notice has not been issued by the correct officer. In fact, he has submitted that a notification is required to be issued directly by the Central Board of Indirect Taxes and Customs to give effect to the changes that have been brought about by the public notice. He submitted that the challenge in the writ petition is on a legal issue and the applicant has no role to play in defending the same. He further submitted that the Customs Authority and the Government of India are the persons entitled to defend such a challenge and there is no 6. Vidur Impex and Traders Pvt. Ltd. (Supra) reason for the applicant to be added as a party.
He further submitted that it is not the policy that is under challenge and therefore there is no need to hear the viewpoint of the Nepalese importer with regard to the policy. He further submitted that there being no allegation that the Government of India and/or the Customs Authority are not defending the matter in a proper manner precluded the applicant from being added as a party. In the event, there was an allegation of coalition between the petitioner and the Customs Authority, the applicant may have made out a case for being added as party. In absence of the same, such addition is prohibited under the law. Finally, he submitted the only interest of the applicant in the present case is of a commercial nature and such an interest cannot be converted into being a direct interest in the litigation. Dr. Chakraborty relied on paragraph 41 of the and Mukund Shah (Supra) in support of his contentions made above.
I have heard learned Counsel appearing on behalf of the parties and I have perused the materials placed on record. On examination of the decisions cited by both the parties it is clear that there is a distinction between a necessary party and a proper party, as clearly enunciated in the case of Razia Begum (Supra). This principle has been followed subsequently by the Hon'ble Apex Court in several
Vidur Impex and Traders Pvt. Ltd. decisions. Some of the decisions have been cited before me.
One may highlight the decision in (Supra) to cull out the principles in relation to addition of a necessary and/or proper party. The relevant paragraph 41 of the decision in the case of Vidur Impex and Traders Pvt. Ltd. (Supra) is delineated hereinbelow :-
Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are :
41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.
41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.
41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."
One may also refer to the case of Mukund Shah (Supra) wherein it was held that mere commercial interest does not entitle a person to be added as a party. The relevant paragraph 5 of the said decision is delineated hereinbelow :-
"5. The Supreme in (1) Razia Begum v. Sahebzadi Anwer Begum AIR 1958 SC 886, with reference to the question of addition of parties had inter alia observed that in a suit relating to the property, in order that a person may be added, he should have a direct interest as distinguished from a commercial interest in the subject-matter of litigation. The Supreme Court had further observed that where the subject-matter of a litigation is a declaration of status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position/effectually and completely to adjudicate upon the controversy. The appellant cannot claim that he ought to have been joined as a pertitioner or respondent in the Civil Rule obtained by the respondent No. 1 herein. He has not also established that without his presence the question involved in the said Civil Rule cannot be completely decided (in this connection see Mulla's Code of Civil procedure, Vol. 1, Page 626). The appellant has not proprietory or even any other direct interest. He claims a mere commercial interest."
In my view, in the present case the applicant definitely is not a necessary party. The argument advanced with regard to the applicant being a proper party having a direct interest in the matter is also not correct, as the only interest I find that the applicant has in the present matter is that in the nature of a commercial interest.
It is to be noted that the present challenge in the writ petition is not to a particular change in policy but the manner in which a policy change has been brought about. Furthermore, one cannot appreciate the manner in which the applicant can be an assistance to the Court when the matter relates to the jurisdiction with regard to issue of a public notice issued by the Customs Authority. The challenge in the writ petition is that the said public notice has been issued dehors the Customs Act, 1962 and the defence to the same can only be provided by the Customs Authority and not by the applicant.
Additionally, I am of the view that any notification / public notice issued by the Government authorities may essentially benefit one section of the society and adversely affect another set of persons. The person whose right is affected has the remedy in approaching the Court and when the matter comes up before the Court, it is the duty of the Government to defend their actions. The fact that certain people have benefited from the notification would not entitle them to come before the Court and be added as a party just because they have a commercial interest linked to the validity of the said notification/public notice.
In the light of the above discussions, I am of the view that the applicant having no direct interest in the matter is not a proper party. Furthermore, since the challenge is to a public notice the duty lies solely with the Government and the Customs Authority to defend the said public notice.
In the light of the above reasons, this application for addition of party, being CAN 4903 of 2019 is dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis, upon compliance of all formalities.
Let the main writ petition, being W.P. 3967 (W) of 2019 appear in the list on September 20, 2019 under the heading 'Assigned Matters'.