# 1#1 Oct1kr, 19. 676 SUPREME COURT REPORTS [1963) SUPP. UDIT NARAIN SINGH MALPAHARIA v. ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR

- **Citation:** [1963] Supp. 1 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 1961-09-11
- **Bench:** S. J. !Mam, K Subba Rao, N. Rajagopala Ayyan!Ur, ]. R. Mudhot, Kar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-1-oct1kr-19-676-supreme-court-reports-1963-supp-udit-narain-singh-malpaharia-2738
- **Pages:** 13

## Headnote

Writ Petition-Writ of certiorari-Necessary and Proper
parties-Constitution of India, Art. 226.
The settlement of a country liquor shop was made by
a lot drawn in favour of oneJadu Manjhi after cancellation of
the license of the previous licensee.
The previous licensee
preferred an appeal before the Commissioner of Excise which
wa• dismissed and then he preferred a revision to the Board of
Revenue, Bihar and obtained stay of the settlement of the shop.
Later on, the Board of Revenue dismissed his petition,andJadu
Man jhi also died. Thereafter a fresh lot was drawn in favour of
the appellant against which the previous ,licensee ubtained 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 tbe appellant and licerrse was i'3ued to him. On
June 19, 1961, one Phudan Manjhi son ofJadu 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 derranding 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 acoordance 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
Deupty t.ommissioner \Vas directed that unless he came to a
definite conclusion that Phudan Manjhi was unfit to hold the
license, he should he selected as a licensee in accordance with
the rules.
The result wa, that the appellant's license was
can~
celletl and the Deputy Commissioner was directed to hold a
fresh settlement giving a preferential treatment to Phudan
Manjhi. The appellant filed a petition under Art._ 226 of t~e
Constitution in 'the High Court to quash the said orders, m
which neither Phud11n Manjhi nor Bhagwan Rajak in whose
I
1 S.C.R.
SUPREME COURT RF.PORTS
6'17
favour the Board of Revenue decided the petition were made
parties. The Hi~h Court dismissed the petition in)imine. In
this Court a preliminary objection was raised by the respondents
that since Phudan Manjhi and Bhagwan Rajak were not made
parties, who were necessa1y 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 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 even at this very late stage it is open to this court to
diroct the implcading of the said parties.
Held, that a necessary party is oni.' 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 quasijudicial act cannot decide against the rights of a party wifhout
fiving him a hearing or an opportunity to represent his case.
If the provisions of a particular statute or rules made thereunder
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 ce·rtiorari will be granted to i remove the
record of proceedings of an inferior tribunal or authority per·
forming judicial or quasi-judicial acts, ex kypothesi it follows
that the High Court in exercising its jurisdiction shall also act
judicially in disposing of the proceedings before it.
In a w~it of certiorari not only the tribu

## Text

1#1
Oct1kr, 19.
676 SUPREME COURT REPORTS [1963) SUPP.
UDIT NARAIN SINGH MALPAHARIA
v.
ADDITIONAL MEMBER, BOARD OF
REVENUE, BIHAR
(S. J. !MAM, K SUBBA RAO, N. RAJAGOPALA
AYYAN!UR and]. R. MUDHOT,KAR, JJ.)
Writ Petition-Writ of certiorari-Necessary and Proper
parties-Constitution of India, Art. 226.
The settlement of a country liquor shop was made by
a lot drawn in favour of oneJadu Manjhi after cancellation of
the license of the previous licensee.
The previous licensee
preferred an appeal before the Commissioner of Excise which
wa• dismissed and then he preferred a revision to the Board of
Revenue, Bihar and obtained stay of the settlement of the shop.
Later on, the Board of Revenue dismissed his petition,andJadu
Man jhi also died. Thereafter a fresh lot was drawn in favour of
the appellant against which the previous ,licensee ubtained 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 tbe appellant and licerrse was i'3ued to him. On
June 19, 1961, one Phudan Manjhi son ofJadu 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 derranding 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 acoordance 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
Deupty t.ommissioner \Vas directed that unless he came to a
definite conclusion that Phudan Manjhi was unfit to hold the
license, he should he selected as a licensee in accordance with
the rules.
The result wa, that the appellant's license was
can~
celletl and the Deputy Commissioner was directed to hold a
fresh settlement giving a preferential treatment to Phudan
Manjhi. The appellant filed a petition under Art._ 226 of t~e
Constitution in 'the High Court to quash the said orders, m
which neither Phud11n Manjhi nor Bhagwan Rajak in whose
I
1 S.C.R.
SUPREME COURT RF.PORTS
6'17
favour the Board of Revenue decided the petition were made
parties. The Hi~h Court dismissed the petition in)imine. In
this Court a preliminary objection was raised by the respondents
that since Phudan Manjhi and Bhagwan Rajak were not made
parties, who were necessa1y 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 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 even at this very late stage it is open to this court to
diroct the implcading of the said parties.
Held, that a necessary party is oni.' 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 quasijudicial act cannot decide against the rights of a party wifhout
fiving him a hearing or an opportunity to represent his case.
If the provisions of a particular statute or rules made thereunder
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 ce·rtiorari will be granted to i remove the
record of proceedings of an inferior tribunal or authority per·
forming judicial or quasi-judicial acts, ex kypothesi it follows
that the High Court in exercising its jurisdiction shall also act
judicially in disposing of the proceedings before it.
In a w~it of certiorari not only the tribunal Of authority
whose order ts sought to be quashed but also parties in whose
favour the said order is i•sucd arc nccc•sary parties. But it is
in the discretion of the Court to add or implead proper parties
~or completely settli.ng all the questions that may be involved
m 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 K_ing v. The Electricity Oommiaaioner, [1924] I K. B.
171, The !f•ng v. London Oounty Oouncil, {1931] 2 K. B. 215,
.dhmtdall• v. M. D. Lalkaka, A. I. R. 1954 Born. 33 and Kanglu
Baula v. Ohit.J Executive Officer, A. I. R. 1955 Nag. 49 referred
~
,
CIVIL ApPELLATE JURISDICTION: Civil Appeal
No. 586 of 196~
Uiit x.,.;,, 8mth
MIJ/μh<ri•
v.
Additio .. I M,,,,;11,
BoorJ of Rn<nw .
Biw
1962
UtlitNarain Singh
MaljJa/rMia
v.
Atl:Jitional Member,
Board of Rev.nue,
Bi/tar
678 SUPREME COURT REPORTS [1963] SUPP.
Appeal by special leave from the judgment
and order dated July 3, 1962, of the Patna High
Court in Misc. Judicial Case No. 460of1962.
H. N. t:Janyal, Additional Bolicitm-General of
India, Jagat Narain Prasad Sinha and U. P. Singh,
for the appellant.
D. P. Singh, M. K. Rarnamurthi, R. K. Garg
Ii
and S. 0. Agarwala, for the respondents .
•
1962. October 19. The Judgment of the
Court was delivered by
Sub/Jo Rao, J.
SUBBA RAO, J .-This appeal by special leave
is directed against the order of 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 may be
briefly stated. 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 for the licence. On 'March 22, 1961, for
the settlement of the shop lots were drawn by the
Deputy Commissioner, Santai Parganas, and the draw
was in favour of Jadu Manjhi. But Hari Prasad
Sah, that is the previous licensee, filed an appeal
against the order of the Deputy Commissioner, before
the Commissioner of the Santai 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 Co~ioner,
1 S.C.R.
SUPltEME COURT REPORTS
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. Me,anwhile 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 Harl
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 th~ 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 substitutmg 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 an appeal against that order to
the Commissioner of E:Kcise; and the Commissioner
remanded the case to the Deputy Commissioner to
consider the
fitne~s 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
~as not an applicant before the Deputy Commiss10ner, 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 Manual, Vol. III; and on
M~h 13, 1962, the Commissioner allowed his application and directed the Deputy Commissioner to take
steps for a fresh settlement of the shop in accordance
wi~ .rules. Against the said orders the appellant filed
pct1t1ons before the Board of Revenue and the said
Board, by its order dated May 30, 1962, dismissed
the pe.tit!ons and directed that. unless the Deputy
Comuuss10ner came to a definite conclusion that
1962
Udit NaraiA Sillth
Malpabaria
v
Mdit~al M,,.t.r,
Board of R1.....,,
Bihar
Subba Rao, J,
1962
Udil Narain Singh
Malpaharia
v.
Additional Member,
Board of Rlyenue,
Bihar
Subba Rao, J.
680 SUPREME COURT REPORTS [1963] SUPP.
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 appellaut's licence
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 Art. 226 of the Constitution in
the High Court at Patna to quash the said orders.
Neither Phudan Manjhi nor Bhagwan Rajak in
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 the
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 J adu Manjhi was not a licensee since no licence
was -issued in his favour.
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
raised on behalf of the respondents, we do not propose to express our view on the merits of the case.
It may be mentioned that the order of the High
1 S.C.R. SUPREME COURT REPORTS
681
Court does not
disclo~e whether the petition was
dismissed as 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 sou'ght to be
quashed, is or are necessary .party or parties.
Whil~
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 wh~thcr 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 deci,ion.
To answer the question raised it would be
convenient at tho outset to ascertain who are 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 o!der can be made effectively; a proper party is
one lil 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 proccedmg.
The next question is, what is the nature of a
writ of certiorari ? What relief can a petitioner in
1962
lJJit J\'ar•in Sinth
M•lf'4h1.ri•1
v.
Additional Mtmier,
Bo~rtl of Rwtnue.
Bihar
Subba Rtie, J.
1962
Udit Narain Singh
Malpaharia
v.
A•ditionat Mnnb1r,
Board of RlrJtnru,
BilllJr
Yu6ia Ra1, J.
682 SUPREME! COURT REPORTS [1963) SUPP·
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 fuuctions. 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 (') 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 juri'Kiiction
of the King's Bench Division exercised in these
writs."
Lord Justice Slesser in The King v. London County
Cooncil (') 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 a 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
(I) [192f] I K. B. 171.
(2) (1931] 2 K. B. 215, US,
1 S.C.R.
SUPREME COURT REPORTS
683
statute or rules made thereunder 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 quasijudicial 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 tribunal or authority is not
made party to the writ, it can easily ignore the 0rder
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 certain: y 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.
19~2
Udil No rain Singh
Ma/paharia
v.
Additional M1mber,
Board of Rtvenue,
Bihor
i962
Udit Narain Si"ngh
A!alpaharia
v.
Additional Member,
Board of R1v1nne,
Bi Mr
Sujila Rao, /.
684 SUPREME COURT REPORTS [1963] SUPP.
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 quasi-judicial act after hearing parties. Its
order affects the right or rights of one or the other of
the parties before it.
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 the said party, with
the result that the tribw1al'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 ccrtiomri without
making him a party or without impleading him subsequently, if allowed by the court, would certainly be
incompetent. A party whose interests are directly
aflccted is, therefore, a necessary party.
Iu 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 may be 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 rrwtu 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
1 S.C.R. SUPREME COURT REPORTS
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 judge-......... ".
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 appea,rs to the Court or judge
to be a proper person 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 nam~d in the petition. The relevant Rules
read thus:
Ru/,e 3. Application under Article 226 of the
Constitution shall be registered as Miscellaneous
Judicial
Cases or Criminal
Miscellaneous
Cases as the case ma')( be.
Ritle 4. Every application shall, soon after it is
registered, be posted for orders before a Division
1952
Udit Narain Singh
Malpaharia
v.
Additional Member,
Board of Revenue,
Bihar
Subba Rao, J.
1962
Jdit Narain Singh
M alp.aharUt
v.
lt.dditilnt1il Member,
-lo•ri •f RlrJenue,
Bihar
686 SUPREME COURT REPORTS [1963) SUPP.
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 necess·
ary 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 thus:
"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 b!! 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 a 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
1 S.C.R.
SUPREME COURT REPORTS
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 Ahmerlalli v. M. D.
Lnllcaka (') 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 (') held that though
the elections to various electoral divisions were void
the petition would have to be dismissed on the short
ground that persons who were declared elected from
the various constituencies were not joined as parties
to the petition and 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 a ~ neces5ary pa-·tirs. 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 €ommissioner
(I) A. J. L ISM !!om. S3. 34.
(2) A. I. R, 1955 Nar. 49.
1962
Udit Narain Sin:lMalpaharia
v.
Additional Membe.
Board •f Revmue,
•U.•r
Subba Raa J.
!962
.Udil Narain Singh
Malpllharia
v.
AJ.lition•l Memb1r,
Boari •f Rt1:1enu1,
IJihar
S1d1bQ Rao, J.
688 SUPREME COURT REPORTS [1963] SUPP.
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 di~closes that 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 was filed 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.
Appeal dismissed.