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 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.
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 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.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Letters Patent Appeal No. 177 of 2012 in Writ Petition No. 1424 of 2012,
Decided On: 21.11.2019
Motilal Vs. Balkrushna Baliram Lokhande
Hon'ble Judges/Coram:
R.K. Deshpande, A.S. Chandurkar and Milind Narendra Jadhav, JJ.
Citation: AIR 2020 Bombay 39(FB)
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 MANU/MH/1000/2011 : 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 MANU/SC/4663/2008 : 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 various judgments delivered by the Apex Court and expressed unanimity in their opinion that - (i) a writ of certiorari under Article 226 of the Constitution of India is not maintainable challenging the order of the Judicial/Civil Court, subordinate to the High Court, (ii) the order passed by such Judicial/Civil Court can be assailed only by invoking supervisory jurisdiction under Article 227 of the Constitution of India, in the absence of a statutory remedy of appeal or revision under the Code of Civil Procedure, (iii) neither the Judicial/Civil Court nor the Presiding Officer over it, is a necessary party in the proceedings under Article 227 of the Constitution of India in relation to a dispute between the two private parties, (iv) in the absence of impleadment of the Judicial/Civil Court which passed the order impugned, a petition or an application under Article 227 of the Constitution of India cannot be dismissed as not maintainable, and (v) the true scope of a writ of certiorari under Article 226 of the Constitution of India is merely to demolish the offending order and it goes against a record which can be brought up only through human agency, from whosoever has the custody thereof, and the presence of the offender before the Court, though proper, is not necessary for the exercise of jurisdiction or to render its determination effective. It is conceded that there is an exception, where a tribunal or authority is required to defend its own order in the proceedings as a prosecutor, in that case, either one of the parties to the proceedings may apply for impleadment or such a party may suo motu approach the Court for impleadment therein or the High Court may in exercise 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 MANU/SC/0719/2015 : 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 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 to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is maintainable?,
(2) 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?,
(3) 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?, and
(4) Whether the finding of the Full Bench in the case of Ramchandra Dagoji Rangari, 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?
Adjudication in respect of Question Nos. (1) and (2):
7. In the decision of the Apex Court in the case of Radhey Shyam and another v. Chhabi Nath and others, reported in MANU/SC/0200/2015 : (2015) 5 SCC 423, the question referred for the decision of the Larger Bench of the Apex Court was whether the view taken by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai, reported in MANU/SC/0559/2003 : (2003) 6 SCC 675, that a writ lies under Article 226 of the Constitution of India against the order of the Civil Court, which has been doubted in the reference order, is the correct law. The view taken in the case of Surya Dev Rai that - (i) the distinction between Articles 226 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 MANU/SC/0044/1966 : 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 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 court. In dealing with this question, Wrottesley, L.J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word 'inferior' as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts. 'The more this matter was investigated', says wrottesley, L.J.: (KB pp. 205-06)
' the clearer it became that the word 'inferior' as applied to courts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical courts, but also palatine courts and admiralty courts are inferior courts. But there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of a superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde.'
Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior court for the purpose of exercising jurisdiction by this Court under Article 32(2) to issue a writ of certiorari in respect of the impugned order passed by it. We are unable to see how this decision can support 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 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 subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to the judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above."
7.4. The ultimate conclusion of the Larger Bench is recorded in Paras 29 to 29.3, which are reproduced below:
"29. Accordingly, we answer the question referred as follows:
29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
7.5. The aforesaid view has been followed with approval by the Apex Court in the case of Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and others, reported in MANU/SC/0719/2015 : AIR 2015 SC 3623; and Ram Kishan Fauji v. State of Haryana and others, reported in MANU/SC/0286/2017 : (2017) 5 SCC 533.
8. In our view, the ratio of the decision has to be understood not only from what has been laid down in the light of the contentions rejected or accepted, but also from the position of law, if any, reversed, overruled or accepted or confirmed. 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. 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 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 authority is not a necessary party.
10. In the decision of the Apex Court in the case of Savitri Devi v. District Judge, Gorakhpur and others, reported in MANU/SC/0122/1999 : (1999) 3 SCC 577, the three-Judge Bench of the Apex Court has observed as under:
"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 petition, they 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 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."
10.1. In the referral order before us, it is observed in Para 42 as under:
"42. It can, thus, clearly be seen that the Apex Court has in clear terms deprecated the practice to implead the Civil Judges or the District Judges as party respondents 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 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.
Adjudication in respect of Question Nos. (4):
12. The Full Bench in Ramchandra Rangari's case relies upon the view taken by the Apex Court as well the Full Bench or the Division Bench of this Court as under:
(a) In Para 100 of the decision of the Apex Court in the case of Umaji Keshao Meshram v. Radhikabai, reported in MANU/SC/0132/1986 : AIR 1986 SC 1272, it is held that under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. This view is also followed in the case of State of M.P. v. Visan Kumar Shiv Charan Lal, reported in MANU/SC/4925/2008 : AIR 2009 SC 1999.
(b) In the decision of the Bombay High Court in the case of Ahmedalli v. M.D. Lalkaka, reported in MANU/MH/0002/1954 : AIR 1954 Bom. 33, it is held that "As a rule of practice, whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is equally clear that all parties affected by that order should also be necessary parties to the petition."
(c) In the decision of the Apex Court in the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, reported in MANU/SC/0045/1962 : AIR 1963 SC 786, it is observed in Para 12 that 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. Thus where in a petition for a writ of certiorari made to the High Court, only the Tribunal whose order was sought 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 MANU/SC/4663/2008 : (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 neither the question raised nor decided as to whether a writ of certiorari under Article 226 of the Constitution of India would be maintainable without impleading the tribunal or authority as a party respondent.
(b) In Ahmedalli's case decided by this Court, a petition for issuance of writ of certiorari sought under Article 226 of the Constitution of India challenging the order passed by the Chief Judge of the Court of Small Causes, Bombay, under Section 507 of the Bombay Municipal Corporation Act, requiring the occupiers of the building to accord all reasonable facilities to the owner for complying with any requisition made by the Municipality under the Act, was dismissed, against which the Letters Patent Appeal was preferred before the Division Bench. The order directed the tenants to accord all reasonable facilities to the landlord to put up props in the rear portion of the building to carry out repairs, as contemplated by the report of the Architect, and the tenants should remove themselves. Initially, only the Chief Judge of the Court of Small Causes was made a party respondent and subsequently, the tenants were also added. It was not a case of non-impleadment of Tribunal as a party respondent in a writ petition. After dismissal of the petition, the question arose as to what order should be made with regard to the costs. The costs were directed to be paid to the Tribunal. It is in this background, in fact the Court takes the view that where the decision of the Tribunal was challenged on the ground of failure to give notice or hearing to the parties or the Tribunal was uninfluenced by an improper motive in arriving at its decision, it would require a reply to be filed by the Tribunal, otherwise normally under no circumstances 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 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 MANU/SC/0095/1954 : 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, whose order was challenged, being made a party respondent, a writ of certiorari under Article 226 of the Constitution of India was maintainable. Obviously, the Election Tribunal was not impleaded as a party respondent and the Apex Court held that a writ of certiorari is directed against the record and there is no reason as to why it should not be issued, calling for the record from anyone, who was the custodian thereof. It was held that the true scope of certiorari is to quash and demolish the offending order and for that, the presence of an authority, which passed an order, would not be necessary.
15. In the decision of the Apex Court consisting of nine Judges in Naresh Mirajkar's case, distinct from seven Judges in Hari Vishnu Kamath's case, the preliminary issue considered was as to whether the High Court had jurisdiction under Article 226 of the Constitution to issue a writ against the decision of the Election Tribunal in the absence of the said Election Tribunal being impleaded as a party respondent, since it had become functus officio. The Apex Court rejected the preliminary objection. It was held that the function of the writ of certiorari is to quash the order and not to substitute its own decision on merits or to give direction to comply with by a court or a tribunal. It merely demolishes the offending order, which it considers to be suffering from the jurisdictional error, and the presence of the offender before the Court, though proper, is not necessary for the exercise of jurisdiction or to render its determination effective. It is directed against the record, which can be brought up only through human agency, and merely because the Tribunal has become functus officio subsequent to its decision, could have no effect 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 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 the decision in Naresh Mirajkar's case, the view is taken in Jogendrasinhji's case by the Apex Court in the year 2015 that when a tribunal or an authority is required to defend its own order, it is to be made a party, failing which the proceedings before the High Court would be regarded as not maintainable. In such a case, it is held that the party can be given an opportunity to join such tribunal or authority as a party respondent, and if, in spite of such directions, there is failure to comply, the proceedings under Article 226 of the Constitution of India have to be held as not maintainable.
18. In Jogendrasinhji's case, 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. The Apex Court relied upon the earlier view taken in the cases of Hari Vishnu Kamath, cited supra, and T.C. Basappa v. T. Nagappa and another, reported in MANU/SC/0098/1954 : AIR 1954 SC 440. The decision of the Apex Court in Udit Narain Singh Malpaharia's case was also considered. It noted the observations in Para 10 in Udit Narain Singh Malpaharia's case, which we reproduce below:
"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 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 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 (MANU/SC/0095/1954 : AIR 1955 SC 233) (supra), Udit Narain Singh (MANU/SC/0045/1962 : AIR 1963 SC 786) (supra) and Savitri Devi (MANU/SC/0122/1999 : 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 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 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 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 Administrative Tribunals Act, 1985, the Custom, Excise and 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 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, the proposition that can safely be culled out is 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, 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 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.
20. 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. In our view, it depends upon the facts and circumstances of each case as to whether the tribunal or the authority which passed an order is a necessary party, without which the petition under Article 226 or 227 of the Constitution of India seeking a writ of certiorari is required to be dismissed. 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.
21. In view of the decision of the Apex Court in the case of Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and others, reported in MANU/SC/0719/2015 : AIR 2015 SC 3623, we hold that 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 MANU/MH/1000/2011 : 2011 (5) Mh.L.J. 193, no longer remains a good law to the extent it holds that "a writ petition under Article 226 of the Constitution of India for a writ of certiorari would not be maintainable without impleading the tribunal/court 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 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.
23. In view of the answer to the questions of law framed, the matters be placed before the Division Bench for appropriate decision in accordance with law.
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