Modern Rice Mill vs Mvvnl and Another

Sudhir Agarwal, J.—After hearing the parties at length the judgment was reserved in this matter on 17th August 2011. While drafting the judgment I noticed that Respondent No. 1 Madhyanchal Vidyut Vitran Nigam Limited, is a Government Company wholly owned by State of U.P. The entire financial implication, in case the matter is decided against the Respondents, would fall upon the State of U.P. However, it has not been impleaded as one of the Respondents. Similarly the order dated 10.06.2010 (Annexure 16 to the writ petition) has been passed by the Commissioner Bareilly Division, Bareilly. He is a statutory appellate authority u/s 127 of the Electricity Act 2003 but he has also not been impleaded as one of the Respondents. Some of the relevant authorities I may refer as hereunder.

In a catena of decisions, this Court has held that the State of U.P. is a necessary party in a case like this and in case it is not impleaded, the writ petition suffers the defect of non-joinder of necessary party and is liable to be dismissed. Since this issue was not pointed out by Respondents'' counsel during the course of argument, the Petitioner had No. occasion to submit any reply on this aspect.

A Division Bench of this Court in Animesh Jain v. Home Secretary U.P. through State of U.P. and Anr. 2003 (52) ALR 333 held:

Thus, we reach the inescapable conclusion that the writ is not maintainable against the Government officers or the employees of the State, it lies only against the State and if State is not impleaded, the writ is not maintainable.

A Division Bench of this Court in Ganga Ram v. Uttar Pradesh Bhumi Sudhar Nigam, Lucknow and Ors. (2003) RD-AH 529 held:

Petition is liable to be dismissed as the State is not impleaded as a party as mandatorily required. (Vide Shri Ranjeet Mal Vs. General Manager, Northern Railway, Baroda House, New Delhi and Another, and Chief Conservator of Forests, Govt. of A.P. Vs. The Collector and Others,

Another Division Bench of this Court in the case of Jogendra Yadav and Ors. v. Central Administrative Tribunal 2007 (3) ESC 1705 (DB) with respect to non-joinder of necessary party though in a matter of seniority held:

In case the private Respondents intended to seek any direction which would ave affected seniority of the persons who were already assigned higher position over the private Respondents, their impleadment and opportunity of hearing to them was necessary. In their absence, No. order could have been passed by the Tribunal adversely affecting their position in the seniority list.

Following the dictum laid down in Prabodh Verma (supra), this Court in Civil Misc. Mool Shanker Singh v. Regional Manager, Punjab National Bank,Varanasi and Anr. (Writ Petition No. 2196 of 1994 decided on 14.12.2009) this Court held:

The Respondents No. 1 and 2, therefore, are already representing the Bank but since the financial implication lie upon the Bank, therefore, the Bank was also a necessary party to be impleaded as held by the Apex Court in Ranjeet Mal (supra) and it is for this reason that the Bank has been sought to be impleaded herein

(Emphasis supplied)

The Apex Court in Prabodh Verma v. State of U.P. 1984 (4) SCC 251, however held that the Court may allow impleadment of a necessary or proper party at any stage if it finds that the writ issued by the Court is likely to affect such party in any manner. The defect of non impleadment of necessary party can be allowed to be removed at any time before the final order in the matter is passed in order to avoid multiplicity of proceedings. It is only if the Petitioner refuses to implead necessary parties as Respondents that the writ petition may be dismissed for non joinder of necessary parties and not otherwise. The relevant observations in Prabodh Verma (supra) in para 28 of the judgment is reproduced as under:

The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh''s case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non joinder of necessary parties. The only Respondents to the Sangh''s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties.- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as Respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as Respondents or at least by some of them being before it as Respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh''s writ petition without insisting upon the reserve pool teachers being made Respondents to that writ petition, or at least some of them being made Respondents in a representative capacity, and had the Petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.

It would also be necessary at this stage to refer the observations of the Apex Court in Prabodh Verma (supra) that the High Court should not dismiss a writ petition on mere technicality but it should not condone every kind of laxity. It was with reference to lack of proper pleading by the Advocates which cause delay in disposal of the matter. It would be appropriate to refer the observation made in para 38 of the judgment as under:

The Petitioners were represented by well-known Counsel, one of them practising in this Court. It is true that neither this Court nor any High Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well-drafted pleading, an exception. An ill-drafted pleading is an offspring of the union of carelessness with. imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the Courts can ill afford by reason of their overcrowded dockets.

In view of the settled principle laid down by the Apex Court as also this Court, since the State of U.P. and Divisional Commissioner are necessary and proper parties in the instant case and without their impleadment the writ petition cannot be decided, I grant a week''s time to the Petitioners to take appropriate steps for impleading the aforesaid as Respondents in the present writ petition failing which this writ petition shall stand dismissed without further reference to the Court.

However, if the Petitioner files any application for impleadment of the aforesaid two parties within time as directed above, this matter shall be listed on 21st September 2011 for further order/hearing.