Bench:
Subbarao, K.
Appellant:
Udit Narain Singh Malpaharia
Respondent:
Additional Member, Board Of Revenue, Bihar
Facts
- The settlement of a country liquor shop was made by a lot drawn in favor of one Jadu Manjhi, after the 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 a stay of the settlement of the OM.
- Later on, the Board of Revenue dismissed his petition and Jadu Manjhi also died. Thereafter a fresh lot was drawn in favor of the appellant against which the previous licensee obtained a stay from the Revenue Court, but his petition was dismissed and after the furnishing of security on September 11, 1961, 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 to take 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 preferential treatment to Phudan Manjhi.
- The appellant filed a petition under Article 226 of the Constitution in the High Court to quash the said orders, in which neither Phudan Manjhi nor Bhagwan Rajak in whose 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 and those who 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.
Issue
Whether in a writ in the nature of certiorari, filed under Article 226 of the Constitution, the party/parties in whose favour the tribunal has passed an order which is sought to be quashed, is/are necessary party/parties to the suit?
Appellant’s Contentions
- The appellant 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.
- A preliminary objection raised that, 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.
Respondent’s Contentions
- The respondent 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.
Relevant Paragraphs (Paragraph Numbers 7, 9, 11, and 13 of the Original Judgement)
- A necessary party is one without whom no order can bade 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.
- When a tribunal or authority passes an order in exercise of its judicial or quasi-judicial power, it affects the right or rights of either of the parties involved in the suit. Therefore, if a writ, in the nature of certiorari, is filed against the such order by the defeated party, then the presence of the successful party also becomes important. Any order passed without making them parties is certainly incompetent.
- Generally, a party whose interests are directly affected by any order of the Court is a necessary party. There are also proper parties whose presence is not important for making an effective order, but which may facilitate the settling of all the issues involved in the case. While the presence of necessary parties is important, it is upto the High Court to decide whether to add proper parties to the suit.
Judgment
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.
In the instant case, the Supreme Court held that 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. Any proceedings and order made in their absence would be against the principle of natural justice and such order would also not be effective. Accordingly, the appeal was dismissed.
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