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1967 DIGILAW 128 (BOM)

CHANDAN MAL OSWAL v. KISHORE alias KASHIRAM

1967-11-10

B.N.DESHMUKH

body1967
JUDGMENT-The petitioner seeks to file a writ petition under Article 227 of the Constitution against the orders of the Rent Controller and the Appellate Authority under the Rent Control Order. He has merely joined his landlord as a party and has not joined the Rent Controller or the Appellate Authority as parties as was being done normally till now. In view of the practice prevailing, the office refuses to register the petition unless the Tribunals are joined as parties. The learned counsel for the petitioner pleaded before the Special Officer that the Tribunals are not necessary parties. In view of this difference of opinion, the matter has been referred to this Court for orders. 2. It is to be remembered that there is an essential difference between the nature of the jurisdiction of this Court under Article 226 and Article 227 of the Constitution. The High Court has powers to issue high prerogative writs under Article 226, not only against individuals but also against authorities, Tribunals and the State Government in an appropriate case. The powers exercised under Article 227 are the powers of superintendence over all tribunals, Courts and authorities functioning in the territory to which the jurisdiction of the High Court extends. These powers are analogous to the powers of revision exercised under the Code of Civil Procedure. 3. This distinction relating to the function sand authority of the High Court under the two Articles has been clearly brought out by the Supreme Court in two judgments. The first relates to a case in Udit Narain Singh v. Board of Revenue, Bihar (1). It is not necessary to note all the facts that led to the appeal before the Supreme Court. Suffice it to say that a dispute arose about the settlement of a liquor license and after various proceedings before the Deputy Commissioner and the Board of Revenue, a dissatisfied party appealed to the Supreme Court. The persons in whose favour a license was settled, were not made parties. An application before the High Court was under Article 226 requiring the High Court to quash the orders of the Authority by issue of a writ of certiorari. The appeal before the Supreme Court was also for the purpose of making a similar prayer for the issue of a writ of certiorari. An application before the High Court was under Article 226 requiring the High Court to quash the orders of the Authority by issue of a writ of certiorari. The appeal before the Supreme Court was also for the purpose of making a similar prayer for the issue of a writ of certiorari. On a preliminary objection that the Tribunal that passed an order is not made a party and as such the appeal is defective, their Lordships observed: "But there 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." 4. Another judgment that is made available to me seems to be yet unreported. It is a judgment delivered in Civil Appeal No. 985 of 1963 in the Civil Appellate Jurisdiction of the Supreme Court on May 8, 1964. A typed copy is made available to me. In this case, a writ petition was filed in the High Court against the orders of the; Board of Revenue relating to the settlement of a liquor licence. Though the petition before the High Court was made under Article 226 and Article 227, the prayer under Article 226 was not granted. The relief was granted only under Article 227. It was against that order that an appeal was filed before the Supreme Court in which the rival claimant for the liquor licence was alone made a party. Though the petition before the High Court was made under Article 226 and Article 227, the prayer under Article 226 was not granted. The relief was granted only under Article 227. It was against that order that an appeal was filed before the Supreme Court in which the rival claimant for the liquor licence was alone made a party. He raised an objection that the Board of Revenue was a necessary party and, in its absence, the appeal is defective. The Supreme Court was, therefore, called upon to consider whether the Board of Revenue is a necessary party. Hearing of the appeal was postponed on this preliminary objection being raised. The appellant filed an application for making the Board of Revenue a party with a prayer to condone the delay. The Supreme Court observed that unless the Board of Revenue was-a necessary party there was no question of condoning the delay in joining it as a party. n also observes that there is an essential difference between the jurisdiction of the High Court under Articles 226 and 227 and quoted the above mentioned observations from Udit Narain Singh v. Board of Revenue, Bihar (1). Having done that and having pointed out the difference between the nature of jurisdiction of the High Court under the two Articles, it is pointed out that though the proceedings before the High Court were initiated under Articles 226 and 227, the relief was granted only under Article 227. The High Court did not issue a writ of certiorari, nor any other writ under Article 226 of the Constitution. Having pointed out these facts, the Supreme Court observes: "The High Court exercised the power of superintendence under Article 227 which the High Court possessed over all the subordinate Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. There is neither practice nor binding authority to support the contention raised by counsel for the respondent that in a proceeding for an order under Article 227 of the Constitution it is necessary to implead the Court or Tribunal against the order for which the proceeding is initiated in the High Court. There is neither practice nor binding authority to support the contention raised by counsel for the respondent that in a proceeding for an order under Article 227 of the Constitution it is necessary to implead the Court or Tribunal against the order for which the proceeding is initiated in the High Court. By entertaining a petition under Article 227 the High Court does not seek to exercise jurisdiction to issue any high prerogative writ; jurisdiction which the High Court exercises under Article 227 is of superintendence a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts for a long time past have been invested under diverse statutes." Having made these observations, the Supreme Court has pointed out that the only relief that was granted being under Article 227 of the constitution, in the appeal to the Supreme Court, the Board of Revenue was not a necessary party. 5. From the above discussion, it is clear that in a matter where the proceedings have been initiated only under Article 227, the authorities or tribunals whose orders are sought to be revised or modified under the powers of superintendence of the High Court under Article 227, the tribunals or authorities, who discharge quasi -judicial functions, are not necessary parties. However where the orders of the tribunal are not normally amenable to the jurisdiction of superintendence of the High Court and which are required to be quashed by some kind of high prerogative writs, or against whom certain high prerogative writs under Article 226 are to be issued, the tribunals would be necessary parties. In this view, the present petition, which is merely a petition under Article 227 against the orders of the Rent Controller and the appellate authority under the Rent Control Order, the authorities are not necessary parties. They are performing quasi-judicial functions and are amenable to the jurisdiction of superintendence of the High Court under Article 227. The learned counsels submission is accepted and it is directed that looking to the nature of the petition, it may be registered without requiring the petitioner to implead the tribunals whose orders are sought to be challenged. Rent Control Authorities held not necessary parties to petition.