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SUPREME COURT OF INDIA
19th October 1962
S.J. IMAM, K SUBBA RAO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
Udit Narain Singh Malpaharia, Appellant
Versus
Additional Member Board of Revenue, Bihar and another, Respondents.
Civil Appeal No. 586 of 1962.
Advocates appeared
Mr. H. N. Sanyal, Addl. Solicitor General of India (M/s Jagat Narain Prasad Sinha and U. P. Singh, Advocates with him), for Appellant; M/s D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Aggarwala Advocates of M/s Ramamurthi and Co, for Respondents.
Misc. Judicial Case No. 460 of 1962, D/3-7-1962-Pat.
-held, one without whom no effective order can be made is a necessary party. One in whose absence effective order can be made but his presence is necessary for complete decision on questions involved is a proper party.
-held, petition would be incompetent.
-see decision in Udit Narayan Singh v. Board of Revenue, AIR 1963 SC 786 = (1973) 2 SCC 690 = (1973) I SCWR 740.
Based on the provided legal document, the key points are as follows:
Necessary Parties in Writ Proceedings: A party without whom no effective order can be made is considered a necessary party. Conversely, a party whose presence is essential for a complete and final decision on the questions involved is regarded as a proper party. The absence of necessary parties can render a petition incompetent (!) .
Nature and Scope of Certiorari: A writ of certiorari is issued to quash proceedings of judicial or quasi-judicial bodies acting beyond their jurisdiction or in violation of principles of natural justice. The issuing of this writ requires that the tribunal or authority be a party to the proceedings, as it is a judicial or quasi-judicial act (!) (!) .
Parties Affected by the Tribunal’s Order: In certiorari proceedings, parties whose rights are directly affected by the tribunal’s order are necessary parties. The court cannot effectively quash an order affecting a party’s rights without their presence, as this could lead to an order that the affected party can ignore, undermining the efficacy of the judgment (!) .
Parties Who Should Be Joined: All persons interested in maintaining the regularity of the proceedings or affected by the order should be impleaded as parties. This includes the authority or tribunal whose order is challenged and any other interested parties. The failure to join necessary parties can invalidate the proceedings (!) (!) (!) .
Discretion in Joining Proper Parties: While necessary parties must be joined, courts have discretion to include proper parties to facilitate a complete adjudication of all questions involved. Proper parties are those whose presence is not essential but may assist in resolving the controversy fully (!) .
Procedural Rules and Principles: Procedures from both English law and local rules emphasize the importance of naming all persons directly affected or interested in the petition. Service of notice on all parties who are affected or against whom relief is sought is mandatory to ensure natural justice and the effectiveness of the proceedings (!) (!) .
Specific Application to the Case: In this case, parties who had succeeded in proceedings and whose orders were in their favor were considered necessary parties. The petitioner’s failure to implead these parties, especially after striking them out and not seeking to re-implead them, rendered the petition incompetent. The court emphasized that the petitioner’s actions compromised the fairness and validity of the proceedings (!) (!) .
Court’s Discretion and Late Applications: The court noted that late requests to re-implead parties or to remand the case are generally not entertained, especially if the omission was due to the petitioner’s own actions. Proper procedural steps should have been taken earlier to ensure all necessary parties were included (!) .
Conclusion: The appeal was dismissed primarily because the petitioner failed to join necessary parties in the original proceedings and did not seek to correct this omission in a timely manner. This failure impacted the validity of the petition and the subsequent proceedings (!) (!) .
Please note that these points are based on the principles and facts outlined in the document and do not include specific case law citations.
Judgment
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.
2. 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, Santal Parganas, and the draw was in favour of Jadu Manjhi. But Hari Prasad Sah, that is a previous licensee, filed an appeal against the order of the Deputy Commissioner, before the Commissioner of 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, 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 Sept. 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 an 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 Manual Vol 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 unless the Deputy Commissioner came to a definite conclusion that 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 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 g
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