TMI Blog1962 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Appeal dismissed. - C.A. 586 OF 1962 - - - Dated:- 19-10-1962 - K. SUBBARAO, SYED JAFFER IMAM, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ. For the Appellant : H. N. Sanyal, Additional Solicitor-General of India, Jagat Narain Prasad Sinha and U. P. Singh For the Respondents : D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agamola JUDGMENT 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 briefly stated. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised 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 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 distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk 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 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 Constituion 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 Bench as to issue of notice to the respondents. The Court may either direct notice to issue and pass such interi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 955 Nag. 49, 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 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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