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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 ..... n 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER R.K. Deshpande, J. 1. The Division Bench of this Court [M/s. B.R. Gavai P.N. Deshmukh, JJ.] has referred the following question for the decision of the Larger Bench by its order dated 18-7-2013 passed in Letters Patent Appeal No. 177 of 2012 arising out of Writ Petition No. 1424 of 2012: As to whether, the finding of the Full Bench, in the case of Ramchandra Dagoji Rangari, holding that a petition for issuance of 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? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its discretion, direct impleadment of such tribunal or authority as the respondent and failing to comply with it, dismiss the proceedings. 4. Shri Subodh Dharmadhikari, the learned Senior Advocate, has urged that the question referred for consideration of this Larger Bench proceeds on the wrong premise that a petition for issuance of a writ of certiorari under Article 226 of the Constitution of India would be maintainable against the order passed by the Judicial/Civil Court, subordinate to the High Court. Placing reliance upon the decision of the Apex Court in the case of Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and others, reported in AIR 2015 SC 3623, he submits that writ petition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 227 stood almost obliterated, and (ii) a writ petition under Article 226 was maintainable against the order of the Civil Court, has been completely overruled in Radhey Shyam's case. 7.1. In Para 27 of the said decision, the Larger Bench in Radhey Shyam's case has quoted Paras 63 and 64 of the decision of the nine-Judge Bench of the Apex Court in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, reported in AIR 1967 SC 1, which are as under: 63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. 'In the case of judgments of inferior courts of civil jurisdiction', 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Mr. Sen's contentions. (emphasis supplied) 7.2. The aforesaid view taken in Naresh Mirajkar's case, cited supra, was approved in Para 27 of the referral order, in Radhey Shyam's case which we reproduce as under: 27. It is clear from the law laid down in Mirajkar in para 63 that a distinction has been made between judicial orders of inferior courts of civil jurisdiction and orders of inferior tribunals or court which are not civil courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil courts of plenary jurisdiction stand on a different footing in view of the law pronounced in para 63 in Mirajkar. The 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. We, therefore, hold that 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 of law at Serial No. (1) is answered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the proceedings. It has been unequivocally observed that such a practice would cause unnecessary disturbance to the functions of the judicial officers concerned. We find that the aforesaid observation of the Apex Court would be aptly applicable to the situation, wherein the courts or the judicial authorities passing orders are impleaded as party respondent. If the District Judges or Civil Judges, whose order are assailed, are impleaded a party respondent in a petition seeking writ of certiorari under Article 226 of the Constitution of India, on issuance of notice, the office will routinely issue notices to such officers and said judicial officers would 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 Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be quashed was made a party but the persons who were parties before the lower Tribunal and in whose favour the impugned order was passed were not joined as parties; it was held that the petition was incompetent and had been rightly rejected by the High Court. The Division Bench of this Court in Ahmedalli v. M.D. Lalkaka stands approved by the Hon'ble Apex Court. (d) In Muhhamad Emanuel v. Muhammad Hussain, reported in 1968 Mh.L.J. (NOC) 1, the Constitution Bench of the Apex Court has held that authorities whose orders are to be quashed by issuing prerogative writs are necessary parties. But if only powers of superintendence under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances the Tribunal would be interested in the decision of the matter. (c) In Udit Narain Singh Malpaharia's case, the Board of Revenue which passed an order was made a party respondent in a proceeding under Article 226 of the Constitution of India, but the persons in whose favour the order was passed were not joined as parties. The question before the Apex Court was that in the absence of the person likely to be adversely affected by the decision to be rendered in a petition under Article 226, whether he is a necessary party. It was held that the petitioner did not join the party in whose favour the Board of Revenue passed 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the jurisdiction of the Court to remove the record. 16. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 party or such a party may suo motu approach the court for being impleaded therein. 18.1. In Para 31 of Jogendrasinhji's case, the Apex Court noted that in Udit Narain Singh Malpaharia's case, the controversy 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 Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the authorities or the tribunals, who in law are entitled to defend 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 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 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, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which passed an order under challenge , subject to certain exceptions carved out in this judgment. Thus, the question of law at Serial No. (4) is answered accordingly. 22. We summarize our conclusions as under: (1) 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. (2) In view of the aforesaid conclusion, 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. (3) 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. (4) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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