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TMI Blog2019 (11) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... t? 2. In the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari through LRs. Smt. Lilabai Ramchandra Rangari and others v. Vishwanath Champat Naik and another, reported in 2011 (5) Mh.L.J. 193, it is held in Para 9.1 that in M.M.T.C. Ltd. v. Commissioner of Commercial Tax and others, reported in AIR (2009) 1 SCC 8, it is nowhere laid down that a writ of certiorari can be issued under Article 226 of the Constitution of India to a private (only) respondent or then in absence of court/tribunal/authority, whose order is assailed before the High Court. The referral order in the present case has expressed its disagreement with the view that without impleading the court/tribunal/authority passing such order, a writ of certiorari would not be maintainable. It further holds that the observations which are posed in negative language, have given rise to the aforesaid question which is required to be considered by the Larger Bench. 3. We had an advantage of hearing Shri Subodh Dharmadhikari and Shri Jugalkishor Gilda, the learned Senior Advocates; Shri R.L. Khapre and Smt. R.D. Raskar, the learned counsels, appearing for the parties, who have taken us through v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion seeking writ of certiorari under Article 226 is not maintainable challenging the order of the Judicial/Civil Court. 5. The order of reference deals with a case where a challenge to the order passed by the Judicial/Civil Court, subordinate to the High Court, in the proceedings for execution of a decree was negatived in a writ petition, styled as one under Articles 226 and 227 of the Constitution of India. Hence, the first question to be considered is whether a petition for issuance of a writ of certiorari under Article 226 of the Constitution of India is maintainable, challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, and if the answer is in the affirmative, then only the second question would be whether in the absence of such Judicial/Civil Court or its Presiding Officer being joined as party respondent in the proceedings under Article 226 of the Constitution of India would be maintainable. 6. After hearing the learned counsels appearing for the parties, we divide the question referred to us in the following four parts: (1) Whether a writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;, says Halsbury in the footnote-- 'it has been suggested that certiorari might be granted to quash them for want of jurisdiction (Kemp v. Balne, Dow & L at p. 887), inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground (Halsbury Laws of England, 3rd Edn., Vol. 11, p. 129)'. The ultimate proposition is set out in the terms: 'Certiorari does not lie to quash the judgment of inferior courts of civil jurisdiction'. These observations would indicate that in England the judicial orders passed by civil courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari." "64. In R. v. Chancellor of St. Edmundsbury and Ipswich Diocese, ex p White, the question which arose was whether certiorari would lie from the Court of King's Bench to an ecclesiastical court; and the answer rendered by the court was that certiorari would not lie against the decision of an ecclesiastical cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage in the subsequent edition of Halsbury (4th Edn.) which has been quoted in Surya Dev Rai does not show at all that there has been any change in law on the points in issue pointed out above." 7.3. The larger Bench in Radhey Shyam's case has held in Para 25 as under: "25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red accordingly. Consequently, the question of law at Serial No. (2) does not at all survive. Adjudication in respect of Question No. (3): 9. Now the question to be considered is whether in the proceedings under Article 227 of the Constitution of India, the Judicial/Civil Court or its Presiding Officer is a necessary party. We have gone through all the decisions relied upon by the Full Bench in Ramchandra Rangari's case, cited supra. In none of the cases relied upon, a question was considered and decided as to whether in the proceedings exclusively under Article 227 of the Constitution of India, the Judicial/Civil Court, subordinate to the High Court, or its Presiding Officer, is a necessary party in a private dispute and in the absence of it, the proceedings are not maintainable. All the decisions relied upon by the Full Bench were in respect of issuance of a writ of certiorari under Article 226, except the decision of the Apex Court in the case of Muhhamad Emanuel v. Muhammad Hussain, reported in 1968 Mh.L.J. (NOC) 1, where it is observed clearly by the Constitution Bench that if only powers of superintendence under Article 227 are to be exercised, such tribunal or authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould receive show cause notice as to why their orders should not be quashed and set aside. We must give due respect to the Members of our subordinate judiciary. We do not find that such a practice is conducive to the independence of the judiciary that is being emphasized time and again." 11. We are bound by the view taken by the Constitution Bench decision of the Apex Court in the case of Muhhamad Emanual and a three-Judge Bench decision in the case of Savitri Devi, cited supra. We, therefore, hold that in the proceedings under Article 227 of the Constitution of India, neither the Judicial/Civil Court nor the Presiding Officer over it, whose order is challenged, can be a necessary party and, therefore, in the absence of such party, a petition or an application cannot be dismissed as not maintainable. The question of law at Serial No. (3) is answered accordingly. We, however, clarify that there may be an exception where there are allegations of mala fides, partiality, bias, etc., where a Presiding Officer is required to be joined personally as party respondent so as to provide him an opportunity to meet the allegations, in such a case, a petition or an application under Article 227 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 227 are to be exercised, such tribunal or authority is not a necessary party. The reason for the same as noted by the Hon'ble Apex Court is that if in certiorari proceeding, such tribunal is not party, the adjudication cannot bind it and it can avoid contempt of Court. (e) The judgment in M.M.T.C. Ltd. v. Commissioner of Commercial Tax and ors., reported in (2009) 1 SCC 8, nowhere states that a writ of certiorari can be issued in absence of or without authority passing the impugned order being joined as party. 13. We have gone through all the decisions relied upon by the Full Bench in Ramchandra Rangari's case to hold that a writ of certiorari under Article 226 would not be maintainable without impleading the court/tribunal/authority whose order is assailed before the High Court as a party respondent and we observe as under: (a) In the decision of the Apex Court in Umaji Keshao Meshram's case, the question was regarding the maintainability of the Letters Patent Appeal challenging the decision of the learned Single Judge delivered in exercise of its jurisdiction under Article 226 or 227 or 226 and 227 of the Constitution of India. It was neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed an order and, therefore, a writ petition was held to be incompetent and not maintainable. (d) In Muhhamad Emanual's case, it was a petition under Articles 226 and 227, which was held to be under Article 227. The Board of Revenue, which passed an order was a party respondent before the High Court. The Constitution Bench of the Apex Court has clearly held that if only powers of superintendence under Article 227 are to be exercised, such tribunal or authority is not a necessary party, and if the tribunal which passed an order is not impleaded in appeal against order passed by the High Court, the appeal may be regarded as defective. It was not a case where the Tribunal, i.e. the Board of Revenue, which passed an order, was not a party respondent in the proceedings before the High Court. 14. In the decision of the seven-Judge Bench of the Apex Court in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, reported in AIR 1955 SC 233, the decision rendered by the Full Bench of the Nagpur High Court, arising out of an order passed by the Election Tribunal was under consideration. The question involved and considered was whether, in the absence of the Election Tribunal, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy of appeal under Clause 15 of the Letters Patent was available. There was neither any reference nor an issue as to whether a petition under Article 226 of the Constitution of India would be maintainable in the absence of a court/tribunal which passed an order, being a necessary party. We, therefore, concur with such a view taken in the referral order before this Court. In all the decisions relied upon by the Full Bench in Ramchandra Rangari's case in support of its view about joining of the court/tribunal/authority as a party respondent in a petition under Article 226 seeking a writ of certiorari, the question was as to maintainability of the appeal under Clause 15 of the Letters Patent. 17. The Bench consisting of seven Judges of the Apex Court in the case of Hari Vishnu Kamath was distinct from the Bench consisting of nine Judges in Naresh Mirajkar's case and the subsequent decision in Naresh Mirajkar's case does not refer to the decision in earlier case of Hari Vishnu Kamath. The position of law laid down in both these decisions is verbatim and same. After taking review of all the judgments, including the decision in Hari Vishnu Kamath's case, but excluding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy was regarding non-impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. It was held that a party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. Thus, there was a distinction made. 18.2. In Paras 32 and 33 of the said case, the decision of the Apex Court in Savitri Devi's case is considered, which deprecated the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India which unnecessarily causes disturbance to the functions of the judicial officers concerned. 18.3. After considering the decisions in the cases of Hari Vishnu Kamath, Udit Narain Singh Malpaharia, and Savitri Devi, it is held in Para 34 of Jogendrasinhji's case as under: "34. As we notice, the decisions rendered in Hari Vishnu Kamath (AIR 1955 SC 233) (supra), Udit Narain Singh (AIR 1963 SC 786) (supra) and Savitri Devi (AIR 1999 SC 976) (supra) have to be properly understood. In Hari Vishnu Kamath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had ceased to exist a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable." 18.4. The ultimate conclusion in Para 34 of Jogendrasinhji's case, holds that a writ petition can be held to be not maintainable, if a tribunal or an authority, that is required to defend the impugned order, has not been arrayed as a party, as it is a necessary party. 19. In our view, the decision of the Full Bench of this Court in Ramchandra Rangari's case holds that in all the cases seeking a writ of certiorari under Article 226 or 227 of the Constitution of India, the court/tribunal/authority whose order is assailed is a necessary party and in the absence of it, writ petition will have to be dismissed as not maintainable. The referral order in the present case has expressed its disagreement with such a view with reasons in support of it and we concur with it. Normally, being a co-ordinate Full Bench, it will not be open for us on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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