M/s. Homera Tanning Industries vs Union of India and Another

Devendra Kumar Upadhyaya, J.—This application seeking impleadment in the writ petition has been filed by Ganga Sewa Abhiyanam, a non-Government organization, Swami Shri Avimukteshwaranand Saraswati, national convener of Ganga Sewa Abhiyanam and Sri Ratnesh Kant Agnihotri, a practicing advocate of this Court and also member of National Ganga Sewa Abhiyanam and its in-charge of Lucknow Parliamentary Constituency. Sri Hari Shanker Jain, learned Counsel for the applicants has submitted that Ganga Sewa Abhiyanam has been established with the object to ensure that holy Ganga is saved from pollution and contamination and further to ensure that contaminated and polluted water is not discharged in the said river. He also states that Ganga Sewa Abhiyanam is committed to save river Ganga from various kinds of pollutants such as waste material discharged from tanneries and other poisonous and hazardous chemicals and substances discharged from the industries and factories. He has further submitted that in view of the object of applicants, they may be added as opposite parties to the writ petition so that all the relevant facts may be brought on record and justice be done to the masses who believe in purity of Ganga in national interest. He also states that since citizens of this country worship Ganga and hence, in the circumstances disclosed in the application, applicants may be allowed to be impleaded as opposite parties.

Sri Jain, learned Counsel for the applicants has also submitted that the Court has the discretion either to allow the application and implead the applicants as opposite parties or to reject the same and allow the applicants to be heard in the matter as intervener. Sri Jain has placed reliance on the judgment of the Hon''ble Apex Court in the case of Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, . He has also placed reliance on two other judgments in support of his contention, namely, Vidur Impex and Traders Pvt. Ltd. and Others Vs. Tosh Apartments Pvt. Ltd. and Others, and Muthavalli of Sha Madhari Diwan Wakf S.J. Syed Zakrudeen and Another Vs. Syed Zindasha and Others, .

Placing reliance on these judgments, Sri Jain has submitted that applicants are a proper party to the writ petition for the reason that their impleadment is necessary in this case to enable the Court to do complete justice and further that they are the parties interested in maintaining the regularity of proceedings of which a judicial review in this case has been sought.

On the other hand, Sri J.N. Mathur, learned Senior Advocate appearing for the petitioner placing reliance on the cases of the Hon''ble Apex Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, , Muthavalli of Sha Madhari Diwan Wakf S.J. Syed Zakrudeen and Another Vs. Syed Zindasha and Others, and Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, has vehemently opposed the prayer of the applicants for their impleadment and their intervention in the case at hand. His submission, in nutshell, is that under challenge in this writ petition is an order passed by the Central Pollution Control Board u/s 5 of the Environment (Protection) Act, 1986 and further that the Central Government (in this case Central Pollution Control Board as its delegatee) exercises its power to issue directions to any person in exercise of its powers and performance of its functions under the said Act. Thus, in a dispute where an order envisaged u/s 5 of the Environment (Protection) Act, 1986 is to be passed, the matter remains between the person concerned to whom the order is to be issued and the Central Government (in this case Central Pollution Control Board), hence no third person with a cause, howsoever laudable it may be, can be permitted to be either impleaded or to intervene. Further submission of Sri Mathur is that the proceedings which culminated in the impugned order being passed by the Pollution Control Board are the subject-matter of instant writ petition wherein a judicial review of the procedure adopted by the Central Pollution Control Board in relation to certain alleged violations of environmental norms by the petitioner-industry are in question, hence no third party can be permitted to be heard.

Admittedly, the applicants are not necessary party for the reason that by the proceedings or the order under challenge in the instant writ petition, they cannot be said to be personally affected. It is settled law that omission to make a person personally affected or personally interested as parties to the writ petition is fatal and in that case the writ petition may be liable to be dismissed on this count alone.

Since none of the personal rights or interests of the applicants are the subject-matter of adjudication in this writ petition, hence we have no hesitation to hold that applicants are not necessary parties to the writ petition as such their prayer for impleadment is liable to be rejected.

As regards the contention of learned Counsel for the applicants that they are proper party, we may refer to the provisions contained in Chapter XXII, Rule 5-A of Rules of the Court, which for ready reference, is being quoted below:

5-A. Hearing of persons not served with notice.--At the hearing of the application, any person who desires to be heard in opposition to the application and appears to the Court to be a proper person to be heard, may be heard notwithstanding that he has not been served with notice under Rule 2.

A bare reading of the afore-quoted Rule 5-A of Chapter XXII of the Rules of the Court makes it undoubtedly clear that any person desirous of being heard in opposition to a writ petition may be heard only in case such a person appears to the Court to be a proper person to be heard.

The distinction between a ''necessary party'' and ''proper party'' is settled. Even according to the judgments relied upon by the learned Counsel for the applicants, a proper party is one whose presence is necessary for completely settling or deciding the question which may be involved in the controversy or to whom the Court, in its discretion, can permit to be heard as intervener in case it feels such a person is to be heard to do complete justice and render a meaningful judgment.

The question, thus, which now requires consideration by the Court is as to whether the applicants are proper party, that is to say, as to whether their presence before the Court is necessary for deciding the issue involved in the writ petition or as to whether their presence is necessary for doing complete justice in the matter.

In the case of Udit Narain Singh Malpaharia (supra) relied upon by the applicants, it has been held that apart from other factors, the Court is required to consider as to whether the presence of a person is necessary to judicially review the regularity of the proceedings of which a review is sought. In the instant case, proceedings of which judicial review under Article 226 of the Constitution of India has been sought have been conducted by the Central Pollution Control Board on the allegation of violation of certain environmental norms by the petitioner-industry. Thus, any outsider or a third party, in our view, in this case cannot be said to be an interested party for maintaining the regularity of the proceedings drawn u/s 5 of the Environment (Protection) Act, 1986.

As regards reliance placed on the judgment in State of Assam Vs. Union of India (UOI) and Others, by the learned Counsel for applicants, we may only observe that Hon''ble Apex Court in the said judgment has only said that proper party is one in whose absence an effective order, though can be made but whose presence is necessary for a complete and final decision of the question involved in the proceedings.

In the instant case, dispute is in respect of the alleged violation of environmental norms by the petitioner-industry which has been noticed and accordingly an order has been passed u/s 5 of Environment (Protection) Act, 1986. The Central Pollution Control Board which has passed the impugned order is a party and has to defend the impugned order and as such, we, in our considered opinion, record that applicants'' presence is not necessary for complete and final decision of the question involved in this case.

Another judgment relied upon by learned Counsel for the applicants in the case of Muthavalli of Sha Madhari Diwan Wakf, S.J. Syed Zakrudeen and another (supra) also does not help him for the reason that Hon''ble Apex Court in the said case has clearly held that the application for impleadment by a third party cannot be allowed in a situation where it would enlarge the scope and ambit of the dispute between the parties. The issue/dispute in the instant case between the petitioner and the Central Pollution Control Board is confined to alleged violation of the environmental norms by the petitioner-industry. Thus, on the ground that applicants are interested in ensuring that holy river Ganga is pollution free, the issue being sought to be raised by them would not lie within the scope and ambit of dispute between the parties in the instant case. Therefore, if tested on the law laid down by the Hon''ble Apex Court in the case of Muthavalli of Sha Madhari Diwan Wakf, S.J. Syed Zakrudeen and another (supra), the applicants cannot be permitted to be either impleaded or heard as intervener for the simple reason that applicants, in fact, by their impleadment intend to enlarge the scope and ambit of the present dispute.

In the case of Anil Kumar Singh (supra), the Hon''ble Apex Court has clearly held that in order to add a party either on application or without application, the Court has to be satisfied that presence of the party to be added would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the dispute. Paragraph-7 of the said judgment in the case of Anil Kumar Singh (supra) is quoted below:

By operation of the above-quoted rule though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent, is that the Court must be satisfied that the presence of the party to be added, would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. To bring a person as party defendant is not a substantive right but one of procedure and the Court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.

Thus, condition precedent for permitting an applicant to be impleaded as a party in any case is the Court''s satisfaction that his presence is necessary for enabling the Court to completely adjudicate the issue involved in this case.

In our considered opinion, the order impugned in the present writ petition is to be defended by the Central Pollution Control Board and the presence of the applicants is not necessary, neither is it desired by the Court.

Further, the subject-matter of instant case and the dispute which requires adjudication by the Court is as to whether the Central Pollution Control Board has rightly found the petitioner-industry to have violated the environmental norms as enunciated in the Environment (Protection) Act, hence, the general concern of the applicants regarding making river Ganga pollution free does not entitle them to enlarge the scope of the instant writ petition. Of course, in an appropriate proceedings or cause, applicants may raise the issue relating to pollution of the rivers in general and the river Ganga in particular, however, they cannot be said to be either necessary or proper party so far as the instant proceedings under Article 226 of the Constitution of India are concerned. In view of the discussions made above and the judgments of Hon''ble Apex Court referred to above, the application is hereby rejected.