Paragraph numbers below are the court’s original numbering, recovered from the source text.
28. In Ghaio Mal & Sons (supra), the Court found a specific fact was not brought on record and evasive replies were filed which were wholly unconvincing. In that context, H A the Constitution Bench, speaking through S.R. Das, C.J. observed:- c " … It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the mind of the court as to the good faith of the authorities concerned in the matter. We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on the inferior court or the quasi-judicial body, to whom the rule is addressed, to produce the entire records before the court along with its return. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examination by the Superior Court so that the latter may be satisfied that the inferior court or the quasi- judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before the High Court. We strongly deprecate this attempt on the part of the official respondents to bypass the court."
29. In Udit Narain Singh Malpaharia (supra), as the F facts would demonstrate the counsel for the respondent therein raised a preliminary objection that the persons in whose favour the Board decided the petition had not been made parties before the High Court. Be it noted, in the said case a country liquor shop was settled in favour of the G appellant therein. After expiry of the said licence, it was renewed in his favour in 1962 which was called in question by one Phudan Manjhi before the Deputy Commissioner for substituting his name in place of his father on the basis of H the lot drawn in favour of his father. The Deputy Commissioner rejected the same which was assailed by SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] Phudan Manjhi before the Commissioner of Excise who A remanded the case to the Deputy Commissioner to consider the fitness of Phudan Manjhi to get the license and to consider his claim on certain parameters. One Bhagwan Rajak, who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner B alleging that there should have been fresh advertisement for the settlement of the shop. The Commissioner allowed his application and directed the Deputy Commissioner to take steps for fresh settlement of the shop in accordance with the rules. The said order was assailed before the Board of Revenue which dismissed the petition and directed that unless the Deputy Commissioner came to a definite conclusion that Phudan Manjhi was unfit to hold licence, he should be selected as a licensee in accordance with rules. As a result of the said proceedings, the appellant's licence stood cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving preferential treatment to Phudan Manjhi. A writ petition was filed under Article 226 of the Constitution before the High Court for quashment of the E said orders and before the writ court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclusion that F Phudan Manjhi was not fit to be selected for grant of licence and he was waiting for making a fresh settlement. In course of hearing of the appeal, a preliminary objection was raised by the learned counsel for the respondent that as Phudan Manjhi and Bhagwan Rajak who were necessary parties to G the writ petition were not made parties, the High Court was justified in dismissing the writ petition in limini. This Court accepted the preliminary objection holding that the law on the subject is well settled that a person who is a necessary party is one without whom no order can be made effectively H [2015) 6 S.C.R. A and a proper party is one in whose absence an effective order can be made but his presence is necessary for complete and final decision on the question involved in the proceeding. After so stating, the four- Judge Bench proceeded to deal with the nature of writ of certiorari and B reproduced a passage from King v. Electricity Commissioners44 , which is as follows:- c "8. " …. 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 jurisdiction of the King's Bench Division exercised in these writs." Lord Justice Slesser in King v. London County Counci/45 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 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 quasi- H " 1924 1 KB 45 (1931) 2 KB 215. (243) SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.) judicial acts, ex hypothhesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit 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 tht:Jre 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 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." Thereafter, the Court proceeded to lay down thus:- c c "9. 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 tribunal'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 certiorari 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 affected is, therefore, a necessary party. 10 .. In 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 parry or such a party may suo motu approach the court for being impleaded therein." SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] After so stating, the four-Judge Bench referred to A English practice as recorded in Halsbury's Laws of England, Vol. 11, 3rr1 Edn. (Lord Simonds') and a Division Bench judgment of the Bombay High Court in Ahmedal/i v. M.D. La/kaka46 and a Full Bench decision of Nagpur High Court in Kanglu Bau/a v. Chief Executive Officer47 and B summarized thus: "To summarise: 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."
30. The High Court, as we find, relied on the aforesaid decision to form the foundation that unless a Court or a tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Karnath (supra), which we have reproduced herein before is that where plain question on issuing directions arises, it is conceivable that there should be in existence a person or authority to whom such directions could be issued. The suggestion that non-existence of a F tribunal might operate as a bar to issue.such directions is not correct as the true scope of certiorari is that it merely demolishes the offending order and hence, the presence of the offender before the Court, though proper is not necessary for the exercise of the jurisdiction or to render its G determination effective.
31. In Udit Narain Singh (supra), the fulcrum of the 46 AIR 1954 Born 33, 34 47 AIR 1955 Nag. 49 A controversy was non-impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. There was violation of fundamental principles of natural justice. A party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. B As we understand in Hari Vishnu Karnath (supra), the seven-Judge Bench opined that for issuance of writ of certiorari, a tribunal, for issue of purpose of calling of record, is a proper party, and even if the tribunal has ceased to exist, there would be some one incharge of the tribunal from whom C the records can be requisitioned and who is bound in law to send the records. The larger Bench has clearly stated that while issuing a writ of certiorari, the Court merely demolishes the defending order, the presence of the offender before the D Court though proper but is not necessary for exercise of jurisdiction. The said finding was recorded in the context of a tribunal.
32. In this context, we may profitably refer to the decision in Savitri Devi (supra) wherein a three-Judge E Bench, though in a different context, had observed thus:- "Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petit!::m, ti 1ey are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice."
33. The High Court after referring to the controversy C involved in Savitri Devi (supra) has opined thus:- "ln our opinion, the observations of the Supreme Court pertained to the judicial officers being made parties in the proceedings as against a person, authority or a o State being made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227 of the Constitution of India." After so stating, the High Court has proceeded to E express the view that it is not a binding precedent and thereafter opined:- "We are of the opinion that although in Hari Vishnu Karnath (supra), the Supreme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise of the jurisdiction or to render its determination effective, but the said principle has been more elaborately explained and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Article 226 of the Constitution without the Tribunal, whose order is sought to be impugned, is made a party respondent."
34. As we notice, the decisions rendered in Hari Vishnu Karnath (supra), Udit Narain Singh (supra) and Savitri Devi (supra) have to be properly understood. In Hari Vishnu Karnath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had B 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 been passed and in that context observed that tribunal is a necessary party. In C 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 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 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 E be called for by the High court without the Court or the Presiding Officer being impleaded as a party. 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 F Administrative Tribunals Act, 1985, the Custom, Excise & Service Tax Appellate Tribunal, 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 G adjudicating authorities and that is why they are called the authorities. An Income 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, H the proposition that can safely be culled out is that the SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] authorities or the tribunals, who in law are entitled to defend A 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 of its discretion. There are tribunals which are not at all required to defend their B own order, and in that case such tribunals need not be arrayed as parties. To give another example:- in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the C 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 D . proceeding before the High Court would be regarded as not maintainable.
35. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how E the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for. the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam G. (supra).
36. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:- (A) Whether a letters patent appeal would lie against the H (2015] 6 S.C.R. order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. (B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. (C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.
37. Having recorded our conclusions in seriatim, we think it appropriate that the matters should be remanded to the High Court to be heard by the Division Bench in accordance with the principles laid down in this judgment and accordingly we so direct. Resultantly, with the G modifications in the order of the High Court, the appeals stand disposed of. There shall be no order as to costs. Devika Gujral Appeals disposed of.