9911796707
TMI Blog1962 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 against the order of the Deputy Commissioner, before the Commissioner of the 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 September 11, 1961, the appellant furnished security and the shop was settled on him and a licence was issued in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in directing a fresh settlement, as neither r. 101 nor r. 145 of Excise Manual would apply to the facts of the case r. 101 does not apply as in this case no licence was cancelled for malpractices, and r. 145 is not attracted as jadu Manjhi was not a licensee since no licence was issued in his favour. Learned counsel for the respondents raised, a preliminary objection that, as Phudan Manjhi and Bhagwan Rajak, who were necessary parties to the writ petition, were not made parties, the High Court was fully justified in dismissing the petition in limine. As we are accepting the preliminary objection on behalf of the respondents, we do not pose to express our view on the merits of the case. It may be mentioned that the order of the High Court does not disclose whether the petition was dismissedas the necessary parties were not before it, or on merits; but that does not preclude us from considering the question now raised, as the respondents had obviously no opportunity to raise that question in the High Court, notice having not been issued to them. The question is whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 The King v. London County Council (2) [1931] 2 K. B. 215,243 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 1 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I 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. 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 maybe 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 ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief is sought should be named in the petition, that is all necessary parties should be impleaded in the petition and notice served on them. In "The law of Extraordinary Legal Remedies" by Ferris, the procedure in the matter of impleading parties is clearly described at p.201 thus: "Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of Such action remains, are not only proper, but necessary parties. It is to such parties that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought. But in order that the court may do ample and complete justice, and render judgment which will be binding on all persons concerned, all persons who are parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties respondent." This passage indicates that both the authority whose order is sought to be quashed and the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
