# POONAM v. STATE OF U.P. & ORS

- **Citation:** [2015] 14 S.C.R. 565
- **Court:** Supreme Court of India
- **Decided:** 2015-10-29
- **Case number:** CivilAppeal No. 6774of2015
- **Bench:** Dipak Misraand R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/poonam-v-state-of-u-p-ors-30614
- **Pages:** 48

## Headnote

A
B
Constitution of India, 1950 -Art.226 - Right to assail
.·appellate order in writ jurisdiction - Concept of necessary
. and proper party - Allotment and grant of licence for a fair C
price shop- Respondent no. 5 was running a fair price shop,
which was .allotted to him - Various complaints against him
- Enquiry ordered - Enquiry report reflected improper
distribution of essential commodities in violation of
instructions -Allotment of respondent no.5 cancelled - He D
preferred appeal - Appellant got herself impleaded in the
appeal on the ground that she had been subsequently allotted
the shop after cancellation of the allotment of respondent
no.5 -Appellate authority restored the allotment made to
respondent no. 5 and cancelled the allotment of appellant, E
the subsequent allottee -Appellant preferred writ petition -
High Court dismissed the same on. ground· that appellant
had no right to continue the litigation being a subsequent
allottee -Approach of the High Court challenged -Plea that
appellant was appointed as a dealer under Visually F
Handicapped quota; and her rights being independent in
· nature, she had a right to assail the appellate order- Whether
appellant was a necessary party to the /is and.the writ court
was obliged to adjudicate the controversy on merits - Held:
In the instant case, the shop· in question had become vacant G
-
The appellant was allotted the shop, may be in the
handicapped quota but such allotment is the resultant faCtor
of the said shop falling vacant- The original allottee, that is
respondent no.5, assailed his cancellation and ultimately
565
H
566
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
succeeded in appeal - Appellant was neither a necessary
nor a proper party- The appellate authority permitted her to
participate but.that neither changes the situation nor does it
confer any legal status on her - She would have continued
to hold the shop had the original allottee lost the appeal -
B She cannot assail the said order in a writ petition because
she is not a necessary party-It is the State or its functionaries,
who could have challenged the same in appeal-They have
maintained sphinx like silence in that regard - Be that as it
may, that would not confer any locus on the subsequent
c allottee to challenge the order passed in favour of the former
allottee - She is a third party to the /is in this context -
Appellant, the writ petitioner before the High Court, was trying
to establish her right in an independent manner, that is, she
has an independent legal right - It is extremely difficult .to
o hold that she has an independent legal right- It was the first
allottee who could have continued in law, if his licence would
not have been cancelled - He was entitled in law to prosecute
his cause of action and restore his legal right - Restoration
of the legal right is pivotal and the prime mover- The eclipse
E being over, he has to come back to the same position - His
right gets revived and that revival of the right cannot be dented
by the third party-Appeal dismissed ..
Doctrines/ Principles-Doctrine of natural justice- Held:
The basic principle behind the doctrine of natural justice, is
F that, no order should be passed behind the back of a person
who is to be adversely affected by the order- However, natural
justice is not an unruly horse - Its applicability has to be
adjudged regard being had to the effect and impact of the
order and the person who claims to be affected; and that is
G where the concept of necessary party become significant -
In absence of a necessary party, no adjudication can take
place and, in fact, the non-joinder would be fatal to the case
- Code of Civil Procedure - Necessary party.
H
POONAM v. STATE OF U.P.
567.
Judgments I Orders - Ratio decidendi - How to A
ascertain - Held: A ratio of a decision has to be understood
in its own context, regard being had to the factual exposition
- If there has been advertence to precedents, the same has
to be seen to understand and appreciate

## Text

_Characters 0–39,761 of 93,158. This is a partial read: ask again with offset=39761 for what follows._

[2015] 14 S.C.R. 565
POONAM
v.
STATE OF U.P. & ORS.
(CivilAppeal No. 6774of2015)
· OCTOBER 29, 2015
[DIPAK MISRAAND R. BANUMATHI, JJ.]
A
B
Constitution of India, 1950 -Art.226 - Right to assail
.·appellate order in writ jurisdiction - Concept of necessary
. and proper party - Allotment and grant of licence for a fair C
price shop- Respondent no. 5 was running a fair price shop,
which was .allotted to him - Various complaints against him
- Enquiry ordered - Enquiry report reflected improper
distribution of essential commodities in violation of
instructions -Allotment of respondent no.5 cancelled - He D
preferred appeal - Appellant got herself impleaded in the
appeal on the ground that she had been subsequently allotted
the shop after cancellation of the allotment of respondent
no.5 -Appellate authority restored the allotment made to
respondent no. 5 and cancelled the allotment of appellant, E
the subsequent allottee -Appellant preferred writ petition -
High Court dismissed the same on. ground· that appellant
had no right to continue the litigation being a subsequent
allottee -Approach of the High Court challenged -Plea that
appellant was appointed as a dealer under Visually F
Handicapped quota; and her rights being independent in
· nature, she had a right to assail the appellate order- Whether
appellant was a necessary party to the /is and.the writ court
was obliged to adjudicate the controversy on merits - Held:
In the instant case, the shop· in question had become vacant G
-
The appellant was allotted the shop, may be in the
handicapped quota but such allotment is the resultant faCtor
of the said shop falling vacant- The original allottee, that is
respondent no.5, assailed his cancellation and ultimately
565
H
566
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
succeeded in appeal - Appellant was neither a necessary
nor a proper party- The appellate authority permitted her to
participate but.that neither changes the situation nor does it
confer any legal status on her - She would have continued
to hold the shop had the original allottee lost the appeal -
B She cannot assail the said order in a writ petition because
she is not a necessary party-It is the State or its functionaries,
who could have challenged the same in appeal-They have
maintained sphinx like silence in that regard - Be that as it
may, that would not confer any locus on the subsequent
c allottee to challenge the order passed in favour of the former
allottee - She is a third party to the /is in this context -
Appellant, the writ petitioner before the High Court, was trying
to establish her right in an independent manner, that is, she
has an independent legal right - It is extremely difficult .to
o hold that she has an independent legal right- It was the first
allottee who could have continued in law, if his licence would
not have been cancelled - He was entitled in law to prosecute
his cause of action and restore his legal right - Restoration
of the legal right is pivotal and the prime mover- The eclipse
E being over, he has to come back to the same position - His
right gets revived and that revival of the right cannot be dented
by the third party-Appeal dismissed ..
Doctrines/ Principles-Doctrine of natural justice- Held:
The basic principle behind the doctrine of natural justice, is
F that, no order should be passed behind the back of a person
who is to be adversely affected by the order- However, natural
justice is not an unruly horse - Its applicability has to be
adjudged regard being had to the effect and impact of the
order and the person who claims to be affected; and that is
G where the concept of necessary party become significant -
In absence of a necessary party, no adjudication can take
place and, in fact, the non-joinder would be fatal to the case
- Code of Civil Procedure - Necessary party.
H
POONAM v. STATE OF U.P.
567.
Judgments I Orders - Ratio decidendi - How to A
ascertain - Held: A ratio of a decision has to be understood
in its own context, regard being had to the factual exposition
- If there has been advertence to precedents, the same has
to be seen to understand and appreciate the true ratio.
J.S. Yadav vs State of U.P. &Anr. (2011) 6 SCC
570 : 2011 (5) SCR 460 - explained.
U.P.' Awas Evain Vikas Parishad v. Gyan Devi
(Dead) by LRs. & Ors .. (1995) 2 sec 326; Delhi
Development Authority v. Bhola Nath Sharma
(Dead) by LRs. and Ors. (2011) 2 sec 54 -
distinguished~
Sri Pal Yadav v. State cit U.P. and others 2008 (1)
ADJ 718; Udit Narain Singh Malpaharia v ·
Additional Member Board of Revenue, Bihar and
another AIR 1963 SC 786 : 1963 Suppl. SCR ·
676; Vijay Kumar Kaul and others v. Union of
India and others (2012) 7 SCC 610 : 2012 (6)
SCR 128; Asstt. G.M State Bank of India v.
Radhey ShyamPandey (2015) 3 SCALE 39; Hari
Vishnu Karnath v. Ahmad lshaque and Ors. AIR
1955 SC 233 : 1955 SCR 1104; The General
Manager, South Central Railway, Secunderabad ·
and another v A. V.R. Siddhantti and Others (197 4)
4 SCC 335 : 1974 (3) SCR 207; B. Gopalaiah
and Ors v. Government of Andhra Pradesh AIR
1969 AP 204; J.S. Sachdev and Ors. v. Reserve
Bank of India, New DelhilLR (1973) 2 Delhi 392;
State of Himacha/ Pradesh and another v. Kai/ash
Chand Mahajan and Others 1992 Supp (2) SCC
251; State of Kera/av. Miss Rafia Rahim AIR 1978
Ker 176; Padamraj v. State ofBihar AIR 1979
Pat 266; A. Janardhana v. Union oflndia (1983)
3 SCC 601 : 1983 (2) SCR 936; Sadananda Halo
B
c
o·
E'
F
G
H
568
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 148.C.R.
and Others v. Momtaz Ali Sheikh and Others
(2008) 4 sec 619: 2008 (3) SCR 497; All India
· SC & ST Employees' Assn. v. A. Arthur Jeerr
(2001) 6 SCC 380: 2001 (2) SCR 1183; Canara
. Bank v. Debasis Das (2003) 4 SCC 557 : 2003
. (2) SCR 968; State of Punjab v. Bhajan Kaur
{2008) 12 SCC 112; Sangam Spinners v. Reg/.
Provident Fund Commr. (2008) 1 SCC 391 : 2007
(12) SCR 883; Railway Board v.
C.R.
Rangadhamaiah (1997) 6 SCC 623 : 1997 (3)
Suppl. SCR 63 ; Prabodh Verma and Others v.
State of Uttar Pradesh and Others (1984) 4 SCC
251 : 1985 (1) SCR 216; /shwar Singh v. Ku/dip
Singh and others 1995 Supp (1) SCC 179; Tridip
Kumar Dingal and other v. State of West Bengal
and Others (2009) 1 sec 768 : 2008 (15)
SCR 194; State of Assam v. Union of India and
Others (2010) 10 sec 408: 2010 (12) SCR 413;
Public Service Commission, Uttranchal v. Mamta
Bisht and Others (2010) 12 SCC 204 : 2010 (7)
SCR 289; Union of India and others v. Dhanwanti
Devi and others (1996) 6 SCC 44 : 1996 (5)
Suppl. SC~ 32 ; Ram Swarup & Ors. vs. S.N.
Maira & Ors. (1999) 1SCC738: 1998 (3) Suppl.
SCR 617; Ramesh Hirachand Kundanmal vs.
Municipal Corporation of Greater Bombay & Ors.
(1992) 2 sec 524 : 1992 (2) SCR 1; Razia
Begum vs. Anwar Begum AIR 1958 SC 886 : 1959
. SCR 1111 - referred to.
Quinn v. Leathern (1901) AC 495- referred to.
Case Law Reference
2008 (1)ADJ 718
referred to
Para 5
1963 Suppl. SCR 676 ·
referred to
Para 14 ·
2012 (6) SCR 128
referred to
Para 15
POONAM v: STATE OF U.P.
569
..
(2015) 3 SCALE 39
referred to
Para 16
A
1955 SCR 1104
referred to
Para 16 ·
1974 {3) SCR 207
referred to
Para 18
AIR 1969 AP 204 .
referred to
Para 19
ILR (1973) 2 Delhi 392 ·
referred to
Para 19
B
1992 Supp (2) sec 251
referred to
Para 19
AIR 1978 Ker 176
referred to :
Para 19
AIR 1979 Pat 266
referred to
Para 19
c
1983 (2) SCR 936
referred to
Para 19
2008 (3) SCR 497
referred to
Para 20
. 2001 (2) SCR 1183 .·
referred to · .
Para 20
2003 (2) SCR 968
referred to
Para 20
D
2011 (5) SCR 460
explained
Para 22
· (2008) 12 sec 112
referred to
Para 24
2007 (12) SCR 883
referred to
Para 24
E
1997 (3) Suppl. SCR 63 referred to
P~ra 24
1985 (1) SCR 216
referred to
Para.28
1995 supp (1) scc.119
referred to
Para 31
2008 (15) SCR 194
referred to
Para 33
F
2010 (12) SCR 413
referred to
Para35
2010 (7) SCR 289
referred to
Para 37
(1901)AC 495
referred to
Para 40
1996 (5) Suppl. SCR 32
referred to
Para 41
~
(1995) 2 sec 326
distinguished
Para44
{2011)2SCC54
. distinguished
Para 45
1998 (3) Suppl. SCR 617 referred to
Para 48
H
570
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
1992 (2) SCR 1
1959 SCR 1111
referred to
referred to
Para 49
Para 49
CIVIL APPELLATE JURISDICTION: Civil Appeal NQ ..
677 4 of 2015.
·
..
B
From the Judgment and Order dated 03.04.2012 in Writ
C No. 163.90 of 2012 passed by the Hon'ble High Court at
Allahabad.
Dushyant Parashar, Adv. for the Appellant.
c
Vikrant Yadav, Gaurav Dhingra, Advs. for the
Respondent. ·
· ·
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The appellant invoked the
D jurisdiction of the High Court of Judicature atAllahbad under
Article 226 of the Constitution praying, inter a/ia, for issue of
writ of certiorari for quashment of the order <;lated 2.3.2012
passed by the respondent no.2, Commissioner, Azamgarh
Division, Azamgarh in Appeal No. 85/109/153/334/M of
E 2008-12 and further seeking a writ of Mandamus against the
respondents not to interfere in the peaceful functioning of fair
price shop in Gram Sabha Ardauna, Tehsil Sadar, District Mau.
2. The facts that formed the bedrock of the writ petition
are that a fair price shop being shop n0. 2 was run by the 5•h
F
respondent in Gram Sabha Ardauna, Tehsil Sadar, Block
Ratanpura, District Mau, which was allotted to him by allotment
order dated 11.5.2001 and while he was continuing, on various
complaints being made againsf him pertaining to nondistribution of essential commodities, Sub-Divisional .
G Magistr.ate, Sadar, District Mau ordered an enquiry and after
obtaining the report, suspended his licence and called for an
explanation from him vide order dated 30.5.2008. As the
factual matrix 1.yould depict vide order dated 3.6:2008 the shop
of respondent no.5 was attached to another shop being run by
H
. l ..
POONAMv. STATE OF U.P.
[DIPAK MISRA, J.]
571
one Bhupendra Singh and the respondent no.5 handed over A
the charge of shop on 19.7.2008. On the said date the final
enquiry report was placed before the· Deputy District
Magistrate, Sadar, District Mau and the report reflected that
there was improper distribution of essential commodities in
yiolation of instructions and accordingly the competent authority B
. by"its order dated 23.7.2008 cancelled the allotment of the
respondent no.5.
3. Being dissatisfied with the order of cancellation, the
5th Respondent preferred an appeal before the Commissioner,
Azamgarh assailing the order dated 23.7 .2008, along with an C
application for stay of the cancellation of allotment, but the
appellate authority declined to pass any interim protective ·
order. Eventually, the appeal preferred by the appellant was
allowed. May it be stated that the appellant herein had got
herself impleaded in the appeal on the ground that she had
D
been allotted the shop no.2 after cancellation of the allotment
along with the licence granted iri favour of the original allottee, ·
the appellant therein.
'
4. The appellate authority after hearing the appellant and
the imp leaded party and uponperusal of the file, opined that E
the entire proceeding against the original allottee was initiated ·
on the basis of the oral statements pertaining to the allegations
made by some BPL card holders that the shopkeeper had
. told them that their cards had been cancelled; and there was
F
no enquiry and investigation by the Deputy District Magistrate
from lhe official doc;:uments as regards the cancellation of
original ration.cards'ofthe BPL card holders; thatthe allottee
wa!i not provided the copy of the irwestigatiori report and hence,
he was deprived of opportunity to submit his clarification and· G
on the whol~. there were serious procedural.lapses; and that
on a careful scrutiny of number of aspects, it was perceptible
that the investigation carried out by the Block Development
Officer was absolutely f<!ulty. Being .of this view, the appellate
authority by order dated 2.3.2012, allowed the appeal of the
H
572
SUPREME COURT REPORTS
[2015] 14S.C.R.
. A
appellant, restored the. allotment and cancelled the allotment
of the subsequent allottee.
· 5. Aggrieved by the aforesaid order, the appellant herein
who was the subsequent allottee in respect of shop no.2
preferred C.M.W.P. No. 16390 of 2012 before the High Court
B which by the impugned order dated 3.4.2012 relied upon an
earlier judgment in Sri Pal Yadav v. State of U.P. and others1
and dismissed the writ petition on the ground that she had no
right to continue the litigation being a subsequent allottee, for
she had no independent right.
G
6. Calling in question the legal defensibility of the order
passed by the writ court, it is submitted 'by Mr. Dushyant
Parashar, learned counsel for the appellant is that the approach
of the High Court is absolutely erroneous inasmuch as it had
0
treated the allotment of the appellant in respect of the fair price
shop as a stop gap arrangement and she had. entered into the
shoes of the original allottee and, therefore, her allotment was
subject to attainment of finality of cancellation order totally
remaining oblivious to the fact that she was appointed as a
E dealer under Visually Handicapped quota. It .is further urged
by him that her rights being independent in nature, she has a
right to assail the appellate order and the High Court could not
have dismissed the writ petition without adverting to the merits
of the case.
F
7. Mr. Vikrant Yadav, learned counsel appearing for the
State, per contra, would contend that in the village Ardauna,
two fair price shops were in existence and ~ne was allotted to
Mr. Bhupinder Singh and the other one to Mr. Arvind Kumar,
the 51h respondent herein and on the basis of the complaint
G made by the Gram Sabha, the Sub-Divisional Magistrate had
attached the shop of respondent no.5 to the shop of Bhupinder
Singh, a.fter suspending his licence on 3.6.200~ and eventually,
an order of cancellation was passed; and when the order of
H
1 2008 (1)ADJ 718
POONAM v. STATE OF U.P.
[DIPAK MISRA, J.]
573
cancellation was set aside in appeal, the original allottee is A
entitled to get back his allotment in respect of shop no.2. and
hence, the appellant has no legal right to assail the order
passed by the appellate authority. Learned counsel for the
State would further submit that shop no.2 h9ving become
available and there being no order that said shop is declared
B
as the shop reserved for any kind of quota, either vertical or
horizontal, the present appellant cannot assert any independent
right in respect of the said shop.
8. At the very outset, we must unequivocally state that we
are not required to enter into the issue whether cancellation C
was justified or not or the order passed by the appellate
authority allowing the appeal is defensible in the facts and
circumstances of the case, for the High Court has expressed
its disinclination to enter into the said arena at the instance of
the present appellant on the foundation that she was an allottee D
after the cancellation of the allotment who was the licencee to
run the fair price shop of the 5'" respondent. Learned counsel
for the appellant has also rightly not advanced any argument
in that regard except emphasising on the facet that as the
appellant had an independent right on her own the High Court E
was under the lawful obligation to address itself with regard to
legal substantiality of the order passed by the appellate
authority on the touchstone of exercise of writ jurisdiction,
however restricted it may be. To bolster the said submission,
immense emphasis is placed on the nature of the allotment
F
made in favour of the appellant.
9. Be it noted, before the appellate authority, the appellant
had got herself impleaded after coming to know that the 5'"
respond~nt had preferred an appeal challenging the order of
cancellation, and the appellate authority had considered the
G
submissions of the original allottee as well as the present
appellant. The thrust of the matter is whether the appellant
can be regarded as a person who is a necessary party to the
lis in such a situation and is entitled under law to advance the
H
574
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
argument that the order passed by the appellate forum being
legally unsustainable, the writ court was obliged to adjudicate
the controversy on merits.
10. It is an admitted position that village Ardauna had
initially two shops. Shop no.2 was allotted in favour of the 5'"
B respondent and he was granted licence to run the fair price
shop. On the basis of certain complaints being received the
competent authority after an enquiry had cancelled the licence.
The appellate authority after ascribing certain reasons, has
overturned the said order. The effect of the said order has to
C be that the original allottee remains an allottee and his licence
continues.
The appeal was preferred challenging the
cancellation of allotment and the order of licence. It is not a
situation where the appeal had been treated to have been
rendered infructuous on the basis of any subsequent event,
D such as, the shop in question has been demarcated for any
reserved category. In that event, such subsequent fact would
have been brought to the notice of the appellate authority and
in that event, possibly no relief could have been granted by the
appellate authority to the appellant except removing the stigma.
E The stand of the State is that initially the shop no.2 was attached
to the other licencee and thereafter on the basis of the
resolution passed by the Gram Sabha, it was allotted to the
present appellant though it was mentioned that it had been
granted under the visually impaired quota. But the character
F of the shop remained the same.
11. At this juncture, it is obligatory on our part to refer to
the letter-circular dated 1.2.2009 issued by the Chief Secretary,
which refers to the Government Order dated 17.8.2002 in
respect of the scheduled caste, scheduled tribe and other
G backward classes. Thereafter, there is reference to certain
horizontal reservation which refers to the ladies of certain
reserved categories, family members of the army who had
expired in the concerned reserved category, ex-army
H personnel, freedom fighters of the concerned reserved
POONAM v. STATE OF U.P.
(DIPAK MISRA, J.]
575
categories and their wives and the handicapped persons of A
the concerned category. After so stating, the circular proceeds
to mention as under:-
"ln this regard I was direction to say that for the allotment
of FPS shop in the rural and urban area, according to
the above arrangement Horizontal reservation is also B
·approved, under which there is arrangement to give 02%
· reservation to the candidate of handicapped persons.
In view of the problem of the blind persons after
appropriate consideration, the administration has
decided that the blind handicapped be granted 1 % C
reservation under Horizontal reservation. In this manner
now to the handicapped person in place of 2% shall be
approved 3% reservation and in this manner 1 %
increased reservation shall be approved only for the
handicapped of blind persons. In this manner in para D
no.3 of the Govt order sub para Gh adding para 3(d), the
handicapped person shall be granted 1 % reservation.
In this manner Horizontal reservation shall be 36% in
place of 35% which is under the total reservation category E
of50%."
12. After issue of the said circular, a further letter dated
12.8.2008 was issued which mentioned the subject granting
priority to the blind handicapped for completing the backlog in
the vacant fair price shops under the public distribution system· F
in rural and urban area. It is relevant to produce certain
paragraphs of the said circular:-
"1. Through Govt. order no. 2715/29-6-02-162-Sa/01
dated 17'h August, 2012 for the allotment of FPS shop
G
for the implementation of reservation has been issued
guidelines and for the reserv"ation of FPS shop also
applied the Horizontal arrangement. Under the above
arrangement there is the provision to grant 2%
reservation to the handicapped. In the above horizontal
H
576
A
B
c
D
E
SUPREME COURT REPORTS
[2015) 14 S.C.R.
there was no clear arrangement for blind handicapped
·persons. Vide Govt. order no. 311/29.06.08-162 SA/01
T.C. dated 01 February, 2008 amending the above Govt.
order granted one percent horizontal reservation to
handicapped blind person.
2. It came in the notice of the administration that in regard
to the reservation of blind handicapped persons vide
Govt. order they are not getting the representation. It is
pertinent to mention here that in the entire district of the
state given the direction on the administration level to
complete the quota of reservation. The administration
after appropriate consideration has taken decision till
then backlog cannot completed for the present
reservation of the blind. since then the blind person should
be granted first priority in the allotment of the shop. in
consideration they are fulfilling the prescribed condition
issued by the Govt for the allotment of the shop. In case
that resident of gram Sabha, who is entitled, the blind do
not apply then the resident of concern Gram Sabha block
development area, other blind person shall be entitled to
apply. In the allotment of FPS shop under Public
Distribution system on the basis of total shop the
reservation should be assessed. Up to the completion
of blind handicapped should not furnish the shop from
any category. under the public distribution system in
F
regard to FPS shop time to time issued Govt order should
be treated amended up to this limit."
[underling is ours]
13. Though, the narration offacts is reflective of a different
G contour of controversy. i.e., allotment and grant of licence for a
fair price shop, the seminal issue, as noted hereinabove, would
hinge on the answer to the question pertaining to right to assail
the order passed in appeal. The appellant was not impleaded
as a party in the appeal but she herself got impleaded.
H Assuming the appellant authority would have decided the
POONAMv. STATE OF U.P.
[DIPAK MISRA, J.)
577
appeal in favour of the original allottee in her absence, could
A
the present appellant, a subsequent allottee in respect of the
same shop, have been allowed in law to make a grievance by
invoking the jurisdiction of any statutory forum or for that matter
the High Court under Article 227 of the Constitution. In essence,
whether she is a necessary party to the litigation and entitled
B
to contest the legal vulnerability of the order of cancellation or
in any manner advance the plea that her allotment would not
be affected despite the. factum that the order of cancellation of
the earlier allottee has been quashed. To appreciate the said
issue we will dwell upon certain authorities though they may C
pertain to different jurisprudence.
14. First, it is necessary to understand about the concept
of necessary and proper party. A Four-judge Bench in Udit
Narain Singh Malpaharia v Additional Member Board of
Revenue, Bihar and another2 has observed thus:-
D
"7 .... .it would be convenient at the 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
E
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 this proceeding."
15. In Vijay Kumar Kaul and others v. Union of India
F
and others3 the court referred to the said decision and has
opined thus:-
"36. Another aspect needs to be highlighted. Neither
before the Tribunal nor before the High Court, Parveen
Kumar and others were arrayed as parties. There is no G
dispute over the factum that they are senior to the
appellants and have been conferred the benefit of
2 AIR.1963 SC 786
3 (2012)7SCC610
H
578
A
8
c
D
E
F
G
SUPREME COURT REPORTS
[2015] 14 S.C.R.
promotion to the higher posts. In their absence, if any
direction is issued for fixation of seniority, that is likely to
jeopardise their interest. When they have not been
impleaded as parties such a relief is difficult to grant.
-
37. In this context we may refer with profit to the decision
in lndu Shekhar Singh v. State of U.P.4 wherein it has
been held thus: (SCC p. 151, para 56)
"56. There is another aspect of the matter. The appellants
herein were not joined as parties in the writ petition filed
by the respondents. In their absence, the High Court
could not have determined the question of inter se
seniority." ·
38. In Public Service Commission v. Mamta Bisht5 this
Court while dealing with the concept of necessary parties.
and the effect of non-impleadment of such a party in the
matter when the selection process is assailed observed
thus: (SCC pp. 207-08, paras 9-10)
"9 .... in Udit Narain Singh Malpaharia v. Board of
Revenue6 , wherein the Court has explained the
distinction between necessary party, proper party and
proforma party and further held that if a person who is
likely to suffer from the order of the court and has not
been impleaded as a party has a right to ignore the said
order as it has been passed in violation of the principles
of natural justice. More so, proviso to Order 1 Rule 9 of
the Code of Civil Procedure, 1908 (hereinafter called
'CPC') provides that non-joinder of necessary party be
fatal. Undoubtedly, provisions of CPC are not applicable
in writ jurisdiction by virtue of the provision of Section
141 CPC but the principles enshrined therein are
applicable. (Vide Gu/abchand Chhotala/ Parikh v. State
• (2006) a sec 129
, (2010) 12 sec 204
H
'AIR 1965 SC 786
POONAM v. STATE OF U.P.
[DIPAK MISRA, J.]
579
·of Gujarat', Babubhai Muljibhai Patel v. Nandlal A
Khodidas Barot8 and Sarguja Transport Service v.
STAP.)
10. In Prabodh Verma v. State of U.P. 10 and Tridip Kumar
Ding al v. State of W B. 11 , it has been held that if a person
challenges the selection process, successful candidates B
or at least some of them are necessary parties."
16. At this juncture, it is necessary to state that in Udit
Narain (Supra) question arose whether a tribunal is a
necessary party. Recently a two-Judge Bench in Asstt. G.M c
State Bank of India v. Radhey Shyam Pandey12 referred to
Hari Vishnu Karnath v. Ahmad lshaque and Ors. 13 and
adverted to the concept of a tribunal being a necessary party
and in that context ruled that:-
" In Hari Vishnu Karnath (supra), the larger Bench was D
dealing with a case that arose from Election Tribunal
which had ceased to exist and expressed the view how
it is a proper party. In Udit Narain Singh (supra), the
Court was really dwelling upon the controversy with regard
to the impleadment of parties in whose favour orders had
E
"been passed and in that context observed that tribunal
is a necessary party. In Savitri Devi (supra), the Court
took exception to courts and tribunals "being made
parties. It is apposite to note here that propositions laid
down in each case has to be understood in proper F
perspective. Civil courts, which decide matters, are
courts in the strictest sense of the term. Neither the court
nor the Presiding Officer defends the order before the
7 AIR 1965 SC 1153
• (1974) 2 sec 706
• (1987) 1 sec 5
10 (1984)4 sec 251
11 (2009) 1 sec 768
12 2015 (3) SCALE 39
13 AIR 1955 SC 233
G
H
580
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
superior court it does not contest. If the High Court, in
exercise of its writ jurisdiction or revisional jurisdiction,
as the case may be, calls for the records, the same can
always be called for by the High court without the Court
or the Presiding Officer being impleaded as a party.
B
Similarly, with the passage of time there have been many
a tribunal which only adjudicate and they have nothing to
do with the lis. We may cite few examples; the tribunals
constituted under the Administrative TribunalsAct, 1985,
the Custom, Excise & Service Tax Appellate Tribunal,
c
the Income Tax Appellate Tribunals, the Sales Tax Tribunal
and such others. Every adjudicating authority may be
nomenclatured as a tribunal but the said authority(ies)
are different that pure and simple adjudicating authorities
and that is why they are called the authorities. An Income
o
Tax Commissioner, whatever rank he may be holding,
when he adjudicates, he has to be made a party, for he
can defend his order. He is entitled to contest. There
are many authorities under many a statute. Therefore,
the proposition that can safely be culled out is that the
E
authorities or the tribunals, who in law are entitled to
defend the orders passed by them, are necessary
parties and if they are not arrayed as parties, the writ
petition can be treated to be not maintainable or the court
may grant liberty to implead them as parties in exercise
F
of its discretion. There are tribunals which are not at all
required to defend their own order, and in that case such
tribunals need not be arrayed as parties."
The principle that has been culled out in the said case is
that a tribunal or authority would only become a necessary party
G which is entitled in law to defend the order.
H
17. The term "entitled to defend" confers an inherent right
to a person if he or she is affected or is likely to be affected by
an order to be passed by any legal forum, for there would be
violation of natural justice. The principle of audi alteram
POONAM v. STATE OF U.P.
[DIPAK MISRA, J.]
581
partem has its own sanctity but the said principle of natural A
justice is not always put in strait jacket formula. That apart, a
person or an authority must have a legal right or right in law to
defend or assail.
18. We may first clarify that as a proposition of law it is
not in dispute that natural justice is not an unruly horse. Its B
applicability has to be adjudged regard being had to the effect
and impact of the order and the person who claims to be
affected; and that is where the concept of necessary party
become significant. In The General Manager, South Central
Railway, Secunderabad and another v. A. V.R. Siddhantti C
and Others14 the Court was dealing with an issue whether the
private respondent therein had approached the High Court
under Article 226 of the Constitution for issue of a writ of
mand<Jmus directing the General Manager, South Central
Railway and the Secretary, Railway Board to fix the inter se,
D
seniority as per the original proceedings, dated 16.10.1952,
of the Railway Board and to further direct them not to give effect
to the subsequent proceedings dated 2.11.1957 and
13.0\ .1961 of the Board issued by way of "modification" and
'clarification" of its earlier proceedings of 1952. The High
E
Court accepted the contentions of the private respondent and
struck down the impugned proceedings. A contention was
canvass~d before this Court that the writ petitioners had not
impleaded about 120 employees who were likely to be affected
by the decis!9n and, therefore, there being non-impleadment F
despite they being necessary parties, it was fatal to the
decision. Rejecting the said submission the court held:-
"As regards the second objection, it is to be noted that
the decisions of the Railway Board impugned in the writ G
petition contain administrative rules of general
application, regulating absorption in permanent
departments, fixation of seniority, pay etc. of the
employees of the erstwhile Grain Shop Departments.
"(1974)4 sec 335
H
582
· SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
The respondents-petitioners are impeaching the validity
of those policy decisions on the ground of their being
violative of Articles 14 and 16 of the Constitution. The
proceedings are analogous to those in which the
constitutionality of a statutory rule regulating seniority of
B
Government servant is assailed. In such proceedings the
necessary parties to be impleaded are those against
whom the relief is sought, and in whose absence no
effective decision can be rendered by the Court. In the
present case, the relief is claimed only against the
c
Railway which has been impleaded through its
representative. No list or order fixing seniority of the
petitioners vis-a-vis particular individuals, pursuant to the
impugned decisions, is being challenged. The
employees who were likely to be affected as a result of
D
the re-adjustment of the petitioner's seniority in
accordance with the principles laid down in the Board's
decision of October 16, 1952, were, at the most, proper
parties and not necessary parties, and their non-joinder
could not be fatal to the writ petition."
E
19. The court further agreed with the principle stated in
B. Gopalaiah and Ors v. Government of Andhra Pradesh15,
J.S. Sachdev and Ors. v. Reserve Bank of India, New
Delhi16 and Mohan Chandra Joshi v. Union of India and
Ors. 17 In this context reference to the authority in State of
F Himachal Pradesh and another v. Kai/ash Chand Mahajan
and Others18 would be appropriate. In the said case a
contention was raised that non-impleadment of the necessary
party was fatal to the writ petition. In support of the said stand
reliance was placed upon two decisions of two different High
G Courts; one, State of Kera/av. Miss Rafia Rahim19 and the
15 AIR 1969 AP 204
16 ILR (1973)2 Delhi 392
17 C.W. No. 650of1970, decided by Delhi High Court
18 1992 Supp (2) sec 251
H
"AIR 1978Ker176
POONAM v. STATE OF U.P.
[DIPAK MISRA, J.]
583
other in Padamraj v. State of Bihar2°. The Court distinguished A
both the decisions by holding thus:-
"The contention of Mr Shanti Bhushan that the failure to
implead Chauhan will be fatal to the writ petition does
not seem to be correct. He relies on State of Kera/a v.
Miss Rafia Rahim. That case related to admission to B
medical college whereby invalidating the selection vitally
affected those who had been selected already. Equally,
the case Padamraj Samarendra v. State of Bihar, has
no application. This was a case where the plea was
founded in Article 14 and arbitrary selection. The C
selectees were vitally affected. The plea that the decision
of the court in the absence of Chauhan would be violative
of principle of natural justice as any adverse decision
would affect him is not correct."
The Court placed reliance on A. Janardhana v. Union
of lndia21 and ultimately did not accept the submission that
the writ petition was not maintainable because of nonimpleadment of the necessary party.
D
20. In this context the authority in Sadananda Halo and E
Others v. Momtaz Ali Sheikh and Others22 is quite pertinent.
The Division Bench referred to the decision in All India SC &
ST Employees' Assn. v. A. Arthur Jeen23 wherein this court
had addressed the necessity in joining the necessary
candidates as parties. The Court referred to the principle of F
natural justice as enunciated in Canara Bank v. Debasis
Das24• We may profitably reproduce the same:-
"Natural justice has been variously defined. It is another
name for common sense justice. Rules of natural justice
are not codified canons. But they are principles ingrained G
20 AIR 1979 Pat 266
21 (1983)3SCC601
22 (2008)4 sec 619
" (2001l6 sec 380
" (2003) 4 sec 557
H
584
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
into the conscience of man. Natural justice is the
administration of justice in a common sense liberal way.
Justice is based substantially on natural ideals and
human values. The administration of justice is to be freed
from the narrow and restricted considerations which are
B
usually associated with a formulated law involving
linguistic technicalities and grammatical niceties. It is the
substance of justice which has to determine its form.
Principles of natural justice are those rules which have
been laid down by the courts as being the minimum
c
protection of the rights of the individual against the
arbitrary procedure that may be adopted by a judicial,
quasi-judicial and administrative authority while making
an order affecting those rights. These rules are intended
to prevent such authority from doing injustice."
D And again:-
E
F
G
"Concept of natural justice has undergone a great deal
of change in recent years. Rules of natural justice are not
rules embodied always expressly in a statute or in rules
framed thereunder. They may be implied from the nature
of the duty to be performed under a statute. What
particular rule of natural justice should be implied and
what its context should be in a given case must depend
to a great extent on the facts and circumstances of that
case, the framework of the statute under which the enquiry
is held. The old distinction between a judicial act and an
administrative act has withered away. The adherence to
principles of natural justice as recognised by all civilised
States is of supreme importance .... "
21. We have referred to the aforesaid passages as they
state the basic principle behind the doctrine of natural justice,
that is, no order should be passed behind the back of a person
who is to be adversely affected by the order. The principle
behind proviso to Order I Rule 9 that the Code of Civil
H Procedure enjoins it and the said principle is also applicable
POONAM v. STATE OF U.P.
[DIPAK MISRA, J.]
585
to the writs. An unsuccessful candidate challenging the A
selection as far as the service jurisprudence is concerned is
bound to make the selected candidates parties.
22. In J.S. Yadav Vs State of U.P. &Anr'25 in Paragraph
31 it has been held thus:-
"No order can be passed behind the back of a person
adversely affecting him and such an order if passed, is
liable to be ignored being not binding on such a party as
the same has been passed in violation of the principles
B
of natural justice. The principles enshrined in the proviso c
to Order 1 Rule 9 of the Code of Civil Procedure, 1908
provide that impleadment of a necessary party is
mandatory and in case of non-joinder of necessary party,
the petitioner-plaintiff may not be entitled for the relief
sought by him. The litigant has to ensure that the 0
necessary party is before the court, be it a plaintiff or a
defendant, otherwise the proceedings will have to fail. In
service jurisprudence if an unsuccessful candidate
challenges the selection process, he is bound to implead
· at least some of the successful candidates in
E
representative capacity. In case the services of a person
are terminated and another person is appointed at his
place, in order to get relief, the person appointed at his
place is the necessary party for the reason that even if
the petitioner-plaintiff succeeds, it may not be possible
F
for the Court to issue direction to accommodate the
petitioner without removing the person who filled up the
post manned by the petitioner-plaintiff. (Vide Prabodh
Verma V. State of U.P, lshwar Singh Vs. Kuldip Singh,
Tridip Kumar Dingal Vs. State ofW.B, State of Assam V.
Union of India and Public Service Commission V. Mamta G
Bisht). More so, the public exchequer cannot be
burdened with the liability to pay the salary of two persons
against one sanctioned post".
"(2011) 6 sec 570
H
586
SUPREME COURT REPORTS
[2015) 14 S.C.R.
A
23. To appreciate the said decision in a real perspective,
it is absolutely necessary to state the facts under which the
decision was rendered and such a statement of law was made.
The issue that arose before this Court related to an order
passed by the High Court of Allahabad by which it had
B dismissed the writ petition filed by the appellant challenging
the notification dated 28.05.2008 by which on the date of
constitution of the Uttar Pradesh State Human Rights
Commission, the appellant was declared to cease to hold the
office as a member of the said commission. This Court noted
c the facts which were relevant and germane for the disposal of
the appeal in paragraph 2. The appellant therein was appointed
as a member of the Commission on 29.06.06 for a period of
five years.