Udit Narain Singh Malpaharia Vs.
Additional Member, Board of Revenue, Bihar  INSC 290 (19 October 1962)
19/10/1962 SUBBARAO, K.
IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 786 1963 SCR Supl. (1) 676
R 1985 SC 167 (37) F 1987 SC1970 (19)
Writ Petition-Writ of certiorari-Necessary
and Proper partiesConstitution of India, Art. 226.
The settlement of a country liquor shop was
made by a lot drawn in favour of one jadu Manjhi after cancellation of the
license of the previous licensee...' The previous licensee preferred an appeal
before, the Commissioner of Excise which was dismissed and then he preferred a
revision to the Board of Revenue, Bihar and obtained stay of the settlement of
the OM. later on, the Board of Revenue dismissed his petition and jadu Manjhi
Thereafter a fresh lot was drawn in favour of
the appellant against which the previous licensee obtained stay from the
revenue court, but his petition was dismissed and after the furnishing of
security on September 11, 196 1, the shop was settled with the appellant and
license was issued to him.
On June 19, 1961, one-Phudan Manjhi son of
jadu Manjhi filed a petition before the Deputy Commissioner for the substitution
of his name in the place of his father which was rejected. Against that order
he preferred an appeal before the Commissioner of Excise who remanded the case
to the Deputy Commissioner to consider the fitness of Phudan Manjhi. One Bhagwn
Rajak who was not an applicant before the Deputy Commissioner filed an
application before the Commissioner demanding fresh advertisement for the
settlement of the shop which was allowed and the Deputy Commissioner was
directed for taking steps for a fresh settlement in accordance with the rules
of the Excise Manual. Against that order the appellant filed a petition before
the Board of Revenue which was, dismissed and the Deputy commissioner was
directed that unless he came to a definite conclusion that Phudan Manjhi was
unfit to hold the license, he should be selected as a licensee in accordance
with the rules. The result was that the appellant's license was cancelled and
the Deputy Commissioner was directed to hold a fresh settlement giving a
preferential treatment to Phudan Manjhi. The appellant filed a petition under
226 of the constitution in the High Court to
quash the said orders, in which neither Phudan Manjhi nor Bhagwan Rajak in
whose 677 favour the Board of Revenue decided the petition were made parties.
The High Court dismissed the petition in limine.
In this Court a preliminary objection was
raised by the respondents that since Phudan Manjhi and Bhagwan Rajak were not
made parties, who were necessary parties to the writ petition, the High Court
was justified in dismissing the petition. It was urged by the appellant that in
such a writ the said tribunal or authority is the only necessary party and the
Parties An Whose favour the said tribunal or authority made an order Or created
parties and even at this very late stage it is open to this court to direct the
impleading of the said parties.
Held, that a necessary party is one without
whom no order can be made effectively; a proper party is one in whose absence
an effective order can be made but whose Presence is necessary for a complete
and final decision on the question involved in the proceeding.
A writ of certiorari lies only in respect of
a judicial or quasi-judicial. act and a tribunal performing a judicial or
quasi-judicial act cannot decide against the rights of a party without giving
him a hearing or an opportunity to represent his case. If the provisions of a
particular statute or rules made there under do not provide for it.
principles of natural justice demand it. Any
such order made without hearing the affected parties would be void. As a writ
of certiorari will be granted to remove the, record of proceedings of an
inferior tribunal or authority performing judicial or quasi-judicial acts, ex hypothesis
it follows that the High Court in exercising its jurisdiction shall also act
judicially in disposing of the proceedings before it.
In a writ of certiorari not only the tribunal
or authority whose order is sought to be quashed but also parties in whose
favour the said order is issued are necessary parties.
But it is in the discretion of the Court,to
add or implead proper parties, for completely settling all the questions that
may be involved in the controversy either suo-motu or on the application of a
party to the writ or an application filed at the instance of such proper party.
The King v. The Electricity Commissioner,
 1 K.B. 171, The King v. London Country Council  2 K.B. 215,
Ahmedalli v. M.D. Lalkaka, A.I.R. 1954 Bom. 33 and Kanglu Baula v. Chief
Executive officer, A.I.R 1955 Nag. 49, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 586 of 1962.
678 Appeal by special leave from the judgment
and order dated July 3, 1962, of the Patna High Court in Misc. Judical Case No.
460 of 1962.
H. N. Sanyal, Additional Solicitor-General of
India, Jagat Narain Prasad Sinha and U. P. Singh, for the appellant.
D. P. Singh, M. K. Ramamurthi, R. K. Garg and
S. C. Agamola, for the respondents.
1962. October 19. The judgment of the Court
was delivered by SUBBA RAO, J.-This appeal by special leave is directed against
the order or the High Court of Judicature at Patna rejecting in limine an
application for a writ of certiorari filed under Art. 226 of the Constitution.
The facts giving rise to this appeal maybe
There is a country liquor shop in Dumka Town.
Originally one Hari Prasad Sah was the licensee of that shop, but his licence
was cancelled by the Excise Authorities. Thereupon a notice was issued inviting
applications for the settlement of the shop, One Jadu Manjhi, along with
others, applied or the licence. On March 22, 1961, for the settlement of the
shop lots were drawn by the Deputy Commissioner, Santal Parganas., and the draw
was in favour of Jadu Manjhi. But Hari Prasad against the order of the Deputy
Commissioner, before the Commissioner of the Santal Parganas and as it was
dismissed, he moved the Board of Revenue, Bihar, and obtained a stay of the
settlement of the said shop. On July, 13, 1961, the Board of Revenue dismissed
the petition filed by Hari Prasad Sah. Meanwhile. Jadu Manjhi died and when the
fact was brought to the notice of the Deputy Commissioner, 679 he decided to
hold a fresh lot on June 19, 1961 and the lot was drawn in favour of the
appellant. Hari Prasad Sah filed a petition in the revenue court and obtained a
stay of the settlement of the shop in favour of the appellant.
Meanwhile one Basantilal Bhagat filed an
application under Art. 226 of the Constitution in the High Court at Patna and
obtained an interim stay; but he withdrew his application on September 8, 1961.
The petition filed by Hari Prasad Sah was dismissed by the Board of Revenue on
July 13, 1961. On September 11, 1961, the appellant furnished security and the
shop was settled on him and a licence was issued in his name. After the expiry
of the period of the said licence, it was renewed in his favour for 1962. On
June 19, 1961, one Phudan Manjhi, son of Jadu Manjhi, filed a petition before
the Deputy Commissioner for substituting his name in the place of his father on
the basis of the lot drawn in favour of his father. The Deputy Commissioner
rejected the application and Phudan Manjhi preferred in appeal against that
order to the Commissioner of Excise; and the Commissioner remanded the case to
the Deputy Commissioner to consider the fitness of Phudan Manjhi to get the
licence and to consider whether the provisions of r. 145 of the Excise Manual,
Vol. II, would apply to the facts of his case. One Bhagwan Rajak, who was not
an applicant before the Deputy Commissioner, filed an application before the
Commissioner alleging that there should have been a fresh advertisement for the
settlement of the shop according to cl.(13) of r.101 of the Excise ManualVol.
III; and on March 13, 1962, the Commissioner allowed his application and directed
the Deputy Commissioner to take steps for a fresh settlement of the shop in
accordance with rules. Against the said orders the appellant filed petitions
before the Board of Revenue and the said Board, by its order dated May 30,
1962, dismissed the petitions and directed that t unless the Deputy
Commissioner came to a definite conclusion that 680 Phudan Manjhi was unfit to
hold the licence, he should be selected as a licensee in accordance with r. 145
of the Excise Manual, Vol. II. The result of the said proceedings is that the
appellant's licence was cancelled and the Deputy Commissioner was. directed to
hold a fresh settlement giving a pre ferential treatment to Phudan Manjhi. The
appellant filed a petition under Art. 226 of the Constitution, in the High
Court at Patna to quash the said orders. Neither Phudan Manjhi nor Bhagwan
Rajak whose favour the Board of Revenue decided the petition, was made a party.
It is represented to us that pursuant to the orders of the Board of Revenue the
Deputy Commissioner made an enquiry, came to the conclusion that Phudan Manjhi
was not fit to be selected for the grant of a licence, and that he has not yet
made a fresh settlement in view of the pendency of the present appeal.
Learned Additional Solicitor General, appearing
for the appellant, contended that the Board of Revenue acted without
jurisdiction in directing a fresh settlement, as neither r. 101 nor r. 145 of
Excise Manual would apply to the facts of the case r. 101 does not apply as in
this case no licence was cancelled for malpractices, and r. 145 is not
attracted as jadu Manjhi was not a licensee since no licence was issued in his
Learned counsel for the respondents raised, a
preliminary objection that, as Phudan Manjhi and Bhagwan Rajak, who were necessary
parties to the writ petition, were not made parties, the High Court was fully
justified in dismissing the petition in limine.
As we are accepting the preliminary objection
on behalf of the respondents, we do not pose to express our view on the merits
of the case. It may be mentioned that the order of the High 681 Court does not
disclose whether the petition was dismissedas the necessary parties were not
before it, or on merits;
but that does not preclude us from
considering the question now raised, as the respondents had obviously no
opportunity to raise that question in the High Court, notice having not been
issued to them.
The question is whether in a writ in the
nature of certiorari filed under Art. 226 of the Constitution the party or
parties in whose favour a tribunal or authority had made an order, which is
sought to be quashed, is or are necessary party or parties. While learned
Additional Solicitor General contends that in such a writ the said tribunal or
authority is the only necessary party and the parties in whose favour the said
tribunal or authority made an order or created rights are not necessary parties
but may at best be only proper parties and that it is open to this Court, even
at this very late stage to direct the impleading of the said parties for a
final adjudication of the controversy, learned counsel for the respondents
contends that whether or not the authority concerned is necessary party, the
said parties would certainly be necessary parties, for otherwise the High Court
would be deciding a case behind the back of the parties that would be affected
by its decision.
To answer the question raised it would be
convenient at the outset to ascertain who air necessary or proper parties in a
proceeding. The law' on the subject is well settled : it is enough if we state
the principle. A necessary party is one without whom no order can be made
effectively'; a proper party is one in whose absence an effective order can be
made but whose presence is necessary for a complete and final decision on the
question involved in the proceeding.
The next question is, what is the nature of a
writ of certiorari ? What relief can a petitioner in 682 such a writ obtain
from the Court ? Certiorari lies to remove for the purpose of quashing the
proceedings of inferior courts of record or other persons or bodies exercising
judicial or quasi-judicial functions. It is not necessary for the purpose of
this appeal to notice the distinction between a writ of certiorari and a writ
in the nature of certiorari : in either case the High Court directs an inferior
tribunal or authority to transmit to itself the record of proceedings pending
therein for scrutiny and, if necessary, for quashing the same. It is well
settled law that a certiorari lies only in respect of a judicial or
quasi-judicial act as distinguished from an administrative act. The following
classic test laid down by Lord justice Atkin, as he then was, in The King v.
The Electricity Commissioner (1) and followed by this Court in more than one
decision clearly brings out the meaning of the concept of judicial act :
"Wherever any body of persons having
legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially.. act in excess of their legal authority they
are subject to the controlling jurisdiction of the King's Bench Division
exercised in these writs." Lord justice Slesser in The King v. London
County Council (2) dissected the concept of judicial act laid down by Atkin, L.
J., into the following heads in his judgment :
"'wherever any body of persons (1)
having legal authority (2) to determine questions affecting rights of subjects
and (3) having the duty to act judicially (4) act in excess of their legal
authority a writ of certiorari may issue". It will be seen from the
ingredients of judicial act that there must be a duty to act judicially. A
tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide
against the rights of 1 party without giving him a hearing or an opportunity to
represent his case in the manner known to law. If the provisions of a
particular (1)  1 K. B. 171.
(2)  2 K. B. 215,243, 683 statute or
rules made there under do not provide for it, principles of natural justice
demand it. Any such order made without hearing the affected parties would be
void. As a writ of certiorari" will be granted to remove the record of
proceedings of an inferior tribunal or authority exercising judicial or
quasi.judicial acts, ex hypothesi it follows that the High Court in exercising
its jurisdiction shall also act judicially in disposing of the proceedings
before It. It is implict in such a proceeding that a tribunal or authority
which is directed to transmit the records must be a party in the writ
proceedings, for, without giving notice to it, the record of proceedings cannot
be brought to the High Court. It is said that in an appeal against the decree
of a subordinate court, the court that passed the decree need not be made a
party and on the same parity of reasoning it is contended that a tribunal need
not also be made a party in a writ proceeding. But there is an essential
distinction between an appeal against a decree of a subordinate court and a
writ of certiorari to quash the order of a tribunal or authority: in the former,
the proceedings are regulated by the Code of Civil Procedure and the court
making the order is directly subordinate to the appellate court and ordinarily
acts within its bounds, though sometimes wrongly or even illegally, but in the
case of the latter, a writ of certiorari is issued to' quash the order of a
tribunal, which is ordinarily outside the appellate or revisional jurisdiction
of the court and the order is ;set aside on the ground that the tribunal or
authority acted Without or in excess of jurisdiction. If such a tribunalor
authority is not made party to the writ, it can easily ignore the order of the
High Court quashing its order, for not being, a party, it will not be liable,
to contempt. In these circumstances whoever else is a necessary party or not
the authority or tribunal is certainly a necessary party to such a proceeding.
' In this' case, the Board of Revenue and the Commissioner of Excise were
rightly, made parties in the writ petition.
684 The next question is whether the parties
whose rights are directly affected are the necessary parties to a writ petition
to quash the order of a tribunal. As we have seen, a tribunal or authority
performs a judicial or quasijudicial act after hearing parties. Its order
affects the right or rights of one or the other of the parties beforeit. In a
writ of certiorari. the defeated party seeks for the quashing of the order
issued by the tribunal in favour of the successful party. How can the High
Court vacate the said order without the successful party being before it ?
Without the presence of the successful party the High Court cannot issue a
substantial order affecting his right. Any order that may be issued behind the
back of such a party can be ignored by I the said party, with the result that the
tribunal's order would be quashed but the right vested in that party by the
wrong order of the tribunal would continue to be effective. Such a party,
therefore, is a necessary party and a petition filed for the issue of a writ of
certiorari without making him a party or without imp leading him subsequently,
if allowed by the court, would certainly be incompetent. A party whose
interests are directly affected is, therefore, a necessary party.
In addition, there may be parties who may be
described as proper parties, that is parties whose presence is not necessary
for making an effective order but whose presence may facilitate the settling of
all the questions that maybe involved in the controversy. The question of
making such a person as a party to a writ proceeding depends upon the judicial
discretion of the High Court in the circumstances of each case. Either one of
the parties to the proceeding may apply for the impleading of such a party or
such a party may suo motu approach the court for being impleaded therein.
The long established English practice, which
the High Courts in our country have adopted all along, accepts the said
distinction between the necessary and 685 the proper party in a writ of
certiorari. The English practice is recorded in Halsbury's Laws of England,
Vol. 11, 3rd Edn. (Lord Simonds') thus in paragraph 136 :
"The notice of motion or summons must be
served on all persons directly affected, and where it relates to any
proceedings in or before a court, and the object is either to compel the court
or an officer thereof to do any act in relation to the proceedings or to quash
them or any order made therein, the notice of motion or summons must be served
on the clerk or registrar of the court, the other parties to the proceedings,
and (where any objection to the conduct of the judge is to be made) on the
In paragraph 140 it is stated :
"On the hearing of the summons or motion
for an order of mandamus, prohibition or certiorari, counsel in support begins
and has a right of reply. Any person who desires to be heard in opposition, and
appears to the Court or judge to be a proper per-son to be heard, is to be
heard not withstanding that he has not been served with the notice or summons,
and will be liable to costs in the discretion of the Court or judge if the
order should be made.....................
So too, the Rules made by the Patna High
Court require that a party against whom relief is sought should be named in the
petition. The relevant Rules read thus:
Rule 3. Application under Article 226 of the Constitution
shall be registered as Miscellaneous judicial Cases or Criminal Miscellaneous
Cases as the case may be.
Rule 4. Application shall, soon after it is
registered, be posted for orders before a Division 686 Bench as to issue of
notice to the respondents. The Court may either direct notice to issue and pass
such interim order as it may deem necessary or reject the application.
Rule 5. The notice of the application shall
be served on all persons directly affected and on such other persons as the
Court may direct.
Both the English rules and the rules framed
by the Patna High Court lay down that persons who are directly affected or
against whom relief is sought should be named in the petition, that is all
necessary parties should be impleaded in the petition and notice served on
them. In "The law of Extraordinary Legal Remedies" by Ferris, the
procedure in the matter of impleading parties is clearly described at p.201
"Those parties whose action is to be
reviewed and who are interested therein and affected thereby, and in whose
possession the record of Such action remains, are not only proper, but
necessary parties. It is to such parties that notice to show cause against the
issuance of the writ must be given, and they are the only parties who may make
return, or who may demur.
The omission to make parties those officers
whose proceedings it is sought to direct and control, goes to the very right of
the relief sought. But in order that the court may do ample and complete
justice, and render judgment which will be binding on all persons concerned,
all persons who are parties to the record, or who are interested in maintaining
the regularity of the proceedings of which a review is sought, should be made
parties respondent." This passage indicates that both the authority whose
order is sought to be quashed and the persons who ,are interested in
maintaining the regularity of the 687 proceeding of which a review is sought
should be added as parties in a writ proceeding. A division Bench of the Bombay
High Court in Ahmedalli v. M. D. Lalkaka (1) laid down the procedure thus :
"I think we should lay down the rule of
practice that whenever a writ is sought challenging the order of a Tribunal,
the Tribunal must always be a necessary party to the petition. It is difficult
to understand how under any circumstances the Tribunal would not be a necessary
party when the petitioner wants the order of the Tribunal to be quashed or to
be called in question. It is equally clear that all parties affected by that
order should also be necessary parties to the petition." A Full Bench of
the Nagpur High Court in Kanglu Baula v.
Chief Executive Officer (2 ) held that though
the elections to various electoral divisions were void the petition would have
to be dismissed on the short ground that per-sons who were declared elected
from the various constituencies were not joined as parties to the petition arid
had not been given an opportunity to be heard before the order adverse to them
was passed. The said decisions also support the view we have expressed.
To summarize: in a writ of certiorari not
only the tribunal or authority whose order is sought to be quashed but also
parties in whose favour the said order is issued are necessary parties. But it is
in the discretion of the court to add or implead proper parties for completely
settling all the questions that may be involved in the controversy either suo
motu or on the application of a party to the writ or an application filed at
the instance of such proper party.
In the present case Phudan Manjhi and Bhagwan
Rajak were parties before the Commissioner (1) A. I. R. 1954 Bom. 33, 34.
(2) A. I. R. 1955 Nag. 49, 688 as well as
before the Board of Revenue. They succeeded in the said proceedings and the orders
of the said tribunal were in their favour. It would be against all principles
of natural justice to make an order adverse to them behind their back; and any
order so made could not be an effective one. They were, therefore, necessary
parties before the High Court. The record discloses t ?at the appellant first
impleaded them in his petition but struck them out at the time of the
presentation of the petition. He did not file any application before the High
Court for impleading them as respondents. In the circumstances, the petition
filed by him was incompetent and was rightly rejected.
That order was made on July 3, 1962; and the
special leave petition wasfiled on July 18, 1962. Even in the special leave
petition the said two parties were not impleaded.
Learned counsel for the appellant suggests
that this Court may at this very late stage direct them to be made parties and
remand the matter to the High Court for disposal. This request is belated and
cannot, therefore, be granted. In this view it is not necessary to express our
opinion on the other questions raised.
The appeal fails and is dismissed with costs.