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2019 (11) TMI 1557 - HC - Indian LawsMaintainability of petition - order passed by the Judicial/Civil Court, subordinate to the High Court - Judicial/Civil Court or its Presiding Officer - necessary party or not - absence of such Court or its Presiding Officer being impleaded as party respondent - the court/tribunal/authority not impleaded. Whether a writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is maintainable? - If the answer is in the negative, whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party and in the absence of it, a writ petition is required to be dismissed as not maintainable? - HELD THAT - Though the Civil Courts are subordinate to the High Court, the expression 'inferior Court' is not referable to 'Judicial Court'. It is thus clear to us that the judicial orders of the Civil Court are not amenable to a writ of certiorari under Article 226 of the Constitution of India. There are no precedents in India for the High Courts to issue writs to subordinate Courts. The jurisdiction to issue a writ of certiorari under Article 226 is distinct from one under Article 227 of the Constitution of India - a writ petition under Article 226 of the Constitution of India challenging the orders passed by the Judicial/Civil Courts, subordinate to the High Court and seeking a writ of certiorari, is not maintainable - The question is answered accordingly. Whether a petition or an application under Article 227 of the Constitution of India challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, needs to be dismissed as not maintainable in the absence of such Court or its Presiding Officer being impleaded as party respondent? - HELD 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 of the Constitution of India will have to be dismissed as not maintainable, if the order is to be set aside on any such ground. Whether the finding of the Full Bench in the case of RAMCHANDRA DAGOJI RANGARI OTHERS VERSUS VISHWANATH CHAMPAT NAIK OTHERS 2012 (10) TMI 681 - BOMBAY HIGH COURT , holding that a petition for issuance of a writ of certiorari under Article 226 of the Constitution of India, would not be maintainable, without impleading the court/tribunal/authority, whose order is assailed before the High Court as a party respondent, lays down a correct position of law or not? - HELD THAT - In the decision of the Full Bench in Ramchandra Rangari's case, according to the referral order, the only issue that fell for consideration was as to whether a petition purely between the two private parties challenging the order of an inferior court or a tribunal could be treated as a petition under Article 227 or could also be treated as a petition under Article 226 of the Constitution of India for maintainability of the Letters Patent Appeal. If the answer was that it can also be treated as a petition under Article 226 of the Constitution of India, then the remedy 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 - 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. In SH JOGENDRASINHJI VIJAYSINGHJI VERSUS STATE OF GUJARAT ORS. 2015 (9) TMI 1338 - SUPREME COURT , the Full Bench of the Gujarat High Court took the view that in a petition under Article 226 of the Constitution of India if the court or the tribunal whose order is sought to be quashed is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned tribunal or court as party. In Para 26 of its decision, the Apex Court framed a specific question pertaining to the maintainability of a petition not only under Article 226, but also under Article 227 seeking a writ of certiorari in the absence of the court or the tribunal whose order is sought to be quashed, being joined as a party respondent. Thus, 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 judicial discipline and propriety to hold that the Full Bench decision in Ramchandra Rangari's case is per incuriam and we will have to refer the matter to a larger Bench. In the facts and circumstances of this case and the decision of the Apex Court in Jogendrasinhji's case rendered subsequent to the decision of the Full Bench of this Court in Ramchandra Rangari's case, covering the entire controversy, in our view, it is permissible for us to hold that the decision in Ramchandra Rangari's case no longer remains a good law - When a tribunal or an authority is required to defend its order, it is to be made a party, failing which the proceedings before the High Court would be regarded as not maintainable. Obviously, in such a case also, the party can be given an opportunity to join such court/tribunal/authority as a party respondent. A writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is not maintainable - the question as to whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party and in its absence a writ petition under Article 226 is maintainable or not, does not survive - A petition or an application under Article 227 of the Constitution of India challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, cannot be dismissed as not maintainable in the absence of such Court or its Presiding Officer being impleaded as a party respondent, subject to the exception carved out in the judgment - In view of the decision of the Apex Court in the case of Jogendrasinhji, the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari, holding that the petition for issuance of a writ of certiorari under Article 226 of the Constitution of India, would not be maintainable without impleading the tribunal or the authority, whose order is assailed before the High Court, as a party respondent, no longer remains a good law, subject to the exception carved out in the judgment. The matters be placed before the Division Bench for appropriate decision in accordance with law.
Issues Involved:
1. Maintainability of a writ petition under Article 226 for issuance of a writ of certiorari to quash orders of Judicial/Civil Courts. 2. Necessity of impleading the Judicial/Civil Court or its Presiding Officer in writ petitions under Article 226. 3. Maintainability of petitions under Article 227 without impleading the Judicial/Civil Court or its Presiding Officer. 4. Validity of the Full Bench ruling in Ramchandra Dagoji Rangari regarding the necessity of impleading the court/tribunal/authority in writ petitions under Article 226. Detailed Analysis: 1. Maintainability of a Writ Petition under Article 226 for Issuance of a Writ of Certiorari to Quash Orders of Judicial/Civil Courts: The court examined the maintainability of writ petitions under Article 226 challenging orders of Judicial/Civil Courts. The judgment referenced Radhey Shyam v. Chhabi Nath, where the Supreme Court overruled the view that a writ petition under Article 226 was maintainable against the order of a Civil Court. The court highlighted that judicial orders of Civil Courts are not amenable to writ jurisdiction under Article 226. The jurisdiction to issue a writ of certiorari under Article 226 is distinct from one under Article 227. Therefore, the court concluded that a writ petition under Article 226 challenging orders of Judicial/Civil Courts is not maintainable. 2. Necessity of Impleading the Judicial/Civil Court or its Presiding Officer in Writ Petitions under Article 226: Given the conclusion that writ petitions under Article 226 are not maintainable against orders of Judicial/Civil Courts, the question of whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party does not arise. 3. Maintainability of Petitions under Article 227 without Impleading the Judicial/Civil Court or its Presiding Officer: The court considered whether in proceedings under Article 227, the Judicial/Civil Court or its Presiding Officer is a necessary party. The judgment cited the Supreme Court's decision in Savitri Devi v. District Judge, Gorakhpur, which deprecated the practice of impleading judicial officers as parties in writ petitions. The court concluded that in proceedings under Article 227, neither the Judicial/Civil Court nor the Presiding Officer is a necessary party. However, an exception exists where allegations of mala fides, partiality, or bias are made against the Presiding Officer, in which case they must be impleaded to provide an opportunity to meet the allegations. 4. Validity of the Full Bench Ruling in Ramchandra Dagoji Rangari Regarding the Necessity of Impleading the Court/Tribunal/Authority in Writ Petitions under Article 226: The Full Bench in Ramchandra Dagoji Rangari held that a writ petition under Article 226 would not be maintainable without impleading the court/tribunal/authority whose order is challenged. However, the court noted that this view was not supported by the Supreme Court's decisions in Hari Vishnu Kamath and Naresh Shridhar Mirajkar, which held that the presence of the tribunal or authority is not necessary for the issuance of a writ of certiorari. The court referred to the Supreme Court's decision in Jogendrasinhji Vijaysinghji, which clarified that when a tribunal or authority is required to defend its order, it must be made a party, failing which the proceedings would be regarded as not maintainable. The court concluded that the decision in Ramchandra Dagoji Rangari no longer remains good law to the extent it holds that a writ petition under Article 226 would not be maintainable without impleading the tribunal/court, subject to exceptions. Conclusion: 1. A writ petition under Article 226 for issuance of a writ of certiorari to quash orders of Judicial/Civil Courts is not maintainable. 2. The question of impleading the Judicial/Civil Court or its Presiding Officer in such writ petitions does not arise. 3. Petitions under Article 227 are maintainable without impleading the Judicial/Civil Court or its Presiding Officer, except in cases of allegations against the Presiding Officer. 4. The Full Bench decision in Ramchandra Dagoji Rangari regarding the necessity of impleading the tribunal/court in writ petitions under Article 226 no longer remains good law, subject to exceptions.
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