TaxTMI 
TaxTMI 
2015 (10) TMI 2630
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....ints being made against him pertaining to non-distribution of essential commodities, Sub-Divisional Magistrate, Sadar, District Mau ordered an enquiry and after obtaining the report, suspended his licence and called for an explanation from him vide order dated 30.5.2008. As the factual matrix would depict vide order dated 3.6.2008 the shop of respondent no.5 was attached to another shop being run by one Bhupendra Singh and the respondent no.5 handed over the charge of shop on 19.7.2008. On the said date the final enquiry report was placed before the Deputy District Magistrate, Sadar, District Mau and the report reflected that there was improper distribution of essential commodities in violation of instructions and accordingly the competent authority by its order dated 23.7.2008 cancelled the allotment of the respondent no.5. 3. Being dissatisfied with the order of cancellation, the 5th Respondent preferred an appeal before the Commissioner, Azamgarh assailing the order dated 23.7.2008, along with an application for stay of the cancellation of allotment, but the appellate authority declined to pass any interim protective order. Eventually, the appeal preferred by the appellant wa....
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....er under Visually Handicapped quota. It is further urged by him that her rights being independent in nature, she has a right to assail the appellate order and the High Court could not have dismissed the writ petition without adverting to the merits of the case. 7. Mr. Vikrant Yadav, learned counsel appearing for the State, per contra, would contend that in the village Ardauna, two fair price shops were in existence and one was allotted to Mr. Bhupinder Singh and the other one to Mr. Arvind Kumar, the 5th respondent herein and on the basis of the complaint made by the Gram Sabha, the Sub-Divisional Magistrate had attached the shop of respondent no.5 to the shop of Bhupinder Singh, after suspending his licence on 3.6.2008 and eventually, an order of cancellation was passed; and when the order of cancellation was set aside in appeal, the original allottee is entitled to get back his allotment in respect of shop no.2. and hence, the appellant has no legal right to assail the order passed by the appellate authority. Learned counsel for the State would further submit that shop no.2 having become available and there being no order that said shop is declared as the shop reserved for any....
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....ing the cancellation of allotment and the order of licence. It is not a situation where the appeal had been treated to have been rendered infructuous on the basis of any subsequent event, such as, the shop in question has been demarcated for any reserved category. In that event, such subsequent fact would have been brought to the notice of the appellate authority and in that event, possibly no relief could have been granted by the appellate authority to the appellant except removing the stigma. The stand of the State is that initially the shop no.2 was attached to the other licencee and thereafter on the basis of the resolution passed by the Gram Sabha, it was allotted to the present appellant though it was mentioned that it had been granted under the visually impaired quota. But the character of the shop remained the same. 11. At this juncture, it is obligatory on our part to refer to the letter-circular dated 1.2.2009 issued by the Chief Secretary, which refers to the Government Order dated 17.8.2002 in respect of the scheduled caste, scheduled tribe and other backward classes. Thereafter, there is reference to certain horizontal reservation which refers to the ladies of certa....
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.... entire district of the state given the direction on the administration level to complete the quota of reservation. The administration after appropriate consideration has taken decision till then backlog cannot completed for the present reservation of the blind, since then the blind person should be granted first priority in the allotment of the shop, in consideration they are fulfilling the prescribed condition issued by the Govt for the allotment of the shop. In case that resident of gram Sabha, who is entitled, the blind do not apply then the resident of concern Gram Sabha block development area, other blind person shall be entitled to apply. In the allotment of FPS shop under Public Distribution system on the basis of total shop the reservation should be assessed. Up to the completion of blind handicapped should not furnish the shop from any category, under the public distribution system in regard to FPS shop time to time issued Govt order should be treated amended up to this limit." [underling is ours] 13. Though, the narration of facts is reflective of a different contour of controversy. i.e., allotment and grant of licence for a fair price shop, the seminal issue, as note....
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.... Indu Shekhar Singh v. State of U.P. (2006) 8 SCC 129 wherein it has been held thus: (SCC p. 151, para 56) "56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority." 38. In Public Service Commission v. Mamta Bisht (2010) 12 SCC 204 this Court while dealing with the concept of necessary parties and the effect of non impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "9. ... in Udit Narain Singh Malpaharia v. Board of Revenue AIR 1965 SC 786 , wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary....
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....ppellate 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." The principle that has been culled out in the said case is that a tribunal or authority would only become a necessary party which is entitled in law to defend the order. 17. T....
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....alogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their nonjoinder could not be fatal to the writ petition." 19. The court further agreed with the principle stated in B. Gopalaiah and Ors v. Government of Andhra Pradesh AIR 1969 AP 204, J.S. Sachdev and Ors. v. Reserve Bank of India, New Delhi ILR (1973) 2 Delhi 392 and Mohan Chandra Joshi v. Union of India and Ors. C.W. No. 650 of 1970, decided by Delhi High C....
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....stice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice." And again:- "Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act ....
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....e the said decision in a real perspective, it is absolutely necessary to state the facts under which the decision was rendered and such a statement of law was made. The issue that arose before this Court related to an order passed by the High Court of Allahabad by which it had dismissed the writ petition filed by the appellant challenging the notification dated 28.05.2008 by which on the date of constitution of the Uttar Pradesh State Human Rights Commission, the appellant was declared to cease to hold the office as a member of the said commission. This Court noted the facts which were relevant and germane for the disposal of the appeal in paragraph 2. The appellant therein was appointed as a member of the Commission on 29.06.06 for a period of five years. Certain provisions of the Protection of Human Rights Act 1993, stood amended vide the Protection of Human Rights (Amendment Act, 2006) which came into force on 23.11.2006. After completion of the tenure by Chairperson of the Commission and other members in October 2007, the appellant remained the lone working member of the Commission. The State Government issued the notification on 28.05.2008 to the effect that the appellant had ....
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....ted being preposterous. xxx xxx xxx 14. In such a fact situation, we do not see any cogent reason to take a view contrary to the same for the reason that in case the legislature in its wisdom has prescribed a minimum experience of seven years as a District Judge knowing it fully well the existing statutory and constitutional provisions, it does not require to be interpreted ignoring the legislative intent. We cannot proceed with an assumption that legislature had committed any mistake enacting the said provision. Clear statutory provision in such a case is required to be literally construed by considering the legislative policy. Thus, no fault can be found with the impugned judgment and order of the High Court on this count." 24. After so stating, the Court noted the fact that 2006 amendment was not under challenge. However, it noted that the issue agitated by the appellant was that the legislature never intended to apply the amended provisions with retrospective effect and, therefore, it could not be discontinued from the post, for his rights stood protected by the provisions of Section 6 of the General Clauses Act. The Court referred to the authorities in State of Punjab....
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....plicable and, therefore, notification is bad in law. Paragraph 31 of the decision proceeded to state that unless necessary parties are arrayed, no relief can be granted. Irrefragably, there can be no cavil over the said proposition of law. Thereafter, the Division Bench proceeded to state that in case the services of a person are terminated and another person is appointed in his place, in order to get the relief, the person appointed at his place is the necessary party for the reason that even if the petitioner succeeds, it may not be possible for the Court to issue a direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner. To arrive at the said conclusion, five authorities have been relied upon. We shall discuss at length the said decisions. 28. We shall deal with the authorities in seriatim. A threejudge Bench decision in Prabodh Verma and Others v. State of Uttar Pradesh and Others (1984) 4 SCC 251 requires to be addressed. The facts in the said case deserved to be stated. In the said case the principal question that arose for determination before this Court was the constitutional validity of two Uttar Pr....
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....igh Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join, then the High Court ought to dismiss the petition for non-joinder of necessary parties. (2) The Allahabad High Court ought not to have proceeded to hear and dispose of Civil Miscellaneous Writ No. 9174 of 1978 - Uttar Pradesh Madhyamik Shikshak Sangh v. State of Uttar Pradesh - without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and, had the petitioners refused to do so, to dismiss that writ petition for non-joinder of necessary parties." 30. On a studied perusal of the aforesaid judgment, it is crystal clear that this Court had opined that when the constitutional validity of a provision is challenged and ther....
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....emorandum was issued by the Assistant Director of Health Services (Administration) to the Director of Employment Exchange for sponsoring the names of candidates for the post of Medical Technologists. Eventually, on the basis of the marks obtained in the oral interview, a list was prepared. The candidates who could not get entry into the select list challenged the same before the West Bengal Administrative Tribunal. The tribunal granted liberty to the authorities to make appointments of the candidates selected and empanelled subject to the result in the Original Application. The matter at various times travelled to the High Court, which directed for disposal of the Original Application. Eventually, the tribunal directed for preparation of the fresh merit list on the basis of marks obtained in the written examination and oral interview excluding those who were already in service. The tribunal also observed that the Committee had fixed 40% as pass marks in the oral interview and the said standard should be applied on the total marks as pass marks and appointment should be given from the fresh panel so prepared in order of merit subject to reservation and filling up of vacant posts. Th....
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.... directed the State to report to the Court as regards the exact number of vacancies which were available for the appointment of the panel to be prepared and to inform whether nine vacancies which had become defunct could be revived. When the matter was placed again on the next date, the High Court noted that a panel of 586 candidates, had been prepared on the basis of 40% marks obtained by candidates both in the written test as well as in the oral interview. It also observed that 66 persons who had been appointed could be accommodated by granting liberty to the State Government in the manner it thought best without disturbing their seniority or continuity of service. It further directed that remaining vacancies should be filled up on the basis of seniority position from the panel of 586 candidates. With the aforesaid directions, the contempt petition was disposed of and the said order was assailed before this Court. After hearing the learned counsel for the parties, this Court came to hold that the contention on behalf of the State Government that written examination was held for shortlisting the candidates and was in the nature of elimination test had no doubt substance, for the s....
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....hallenges the selection, he is under legal obligation to implead the selected candidates as they are necessary parties and there can be no two opinions as regards such a proposition of law. 35. In State of Assam v. Union of India and Others (2010) 10 SCC 408 the State of Assam, being aggrieved by the decision rendered in writ appeal and the dismissal of the review application filed by it, had approached this Court. The factual matrix as was presented before the Court was that Union of India had introduced "Family Welfare Scheme" under its Family Planning Programme and under the said Scheme, there was a provision for appointment of Voluntary Female Attendants on a monthly honorarium of Rs. 50/- per month from the inception of the Scheme which was subsequently increased to Rs. 100/- per month, w.e.f. February, 2001. As the factual narration would show a writ petition was filed claiming benefit from the respondents of the pay of Rs. 900/- per month, the minimum of the pay scale payable to the Voluntary Female Attendants. A prayer was also made for regularisation. A direction was given by the High Court that it was for the State Government to consider the prayers in accordance with ....
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....that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. xxx xxx xxx 23. We are also unable to comprehend any possible reasons for the Union of India to omit the State of Assam from the array of parties in the writ appeals filed before the Division Bench of the High Court. The fact remains that they were not made parties to the proceedings. The High Court, in our view, while allowing the appeals filed by the Union of India and shifting the liability of payment of salary/wages to the Voluntary Female Attendants on the State of Assam, should have taken a little more care and caution to find out whether the State of Assam is arrayed as a party to the proceedings and whether they are served with the notice of the appeals and in spite of service, whether they have remained absent. This is the least that is expected from the Court. Without making this small verification, the Division Bench of the High Court has fixed huge recurring financial liability on the State Government. In ou....
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....not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1, Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called "CPC") provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot (1987) 1 SCC 5 and Sarguja Transport Service v. STAT (1974) 2 SCC 706 .) 10. In Prabodh Verma v. State of U.P. and Tridip Kumar Dingal v. State of W.B., it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties." 38. The said decision, as we understand, clearly spells out that in the absence of a necessary party, no adjudication can take place and, in fact, the non-joinder would be fatal to the case. 39. The aforesaid decisions do not lay down as a proposition of law that in every case when a termination is challenged, the affect....
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....m. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qual....
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....ity of the provision, we are disposed to think that it is not a binding precedent for the proposition that in a case of termination or removal or dismissal, the person appointed in the place of a terminated, removed or dismissed employee would be a necessary party. That is how the said authority has to be understood, and we so understand. 43. It has been held in Debasis Das (supra), the principles of natural justice are to be determined in the context and it must depend to a great extent on the facts and circumstances of that case. In this context, the decision in Kailash Chand Mahajan (supra) becomes extremely apposite. May it be noted, we have already referred to the said judgment but a detailed analysis is necessary to understand the present controversy. In the said case, the first respondent, after his retirement, was appointed as a Member of the Himachal Pradesh State Electricity Board and thereafter as the Chairman of the said Board. He was granted extensions from time to time. The last extension was issued on June 12, 1989 for a period of three years i.e., July 25, 1992. After the General Elections to the Legislative Assembly which was held in January 1990, the Government....
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....er from this angle, it may be noticed that relief is sought only against the Union of India and the Ministry concerned and not against any individual nor any seniority is claimed by anyone individual against another particular individual and, therefore, even if technically the direct recruits were before the court, the petition is not likely to fail on that ground." 105. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on June 12, 1990. Then, again, as pointed out by the High Court it was "till further orders". Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition." [Emphasis added] The said decision, we are inclined to think is a binding precedent for the purpose of understanding the concept of necessary party. The Court has relied on the pronouncement in A. Janardhana (supra)....
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....ng to the parties which shall necessarily include opportunity to adduce evidence for the purpose of determining the amount of compensation. 46. We have referred to the aforesaid decisions with the purpose that the company or the authority has been treated as a necessary party on the foundation that it meets the criterion provided in the definition clause and that apart ultimately it has to pay the compensation. Therefore, it has a right in law to participate in the proceedings pertaining to determination of the amount of compensation. Factual score, needless to say, stands on a different footing. 47. Few examples can be given so that the position can be easily appreciated. There are provisions in some legislations pertaining to Gram Panchayat or Panchayat Samiti where on certain grounds the competent authority has been conferred the power to remove the elected Sarpanch or the Chairman, as the case may be on certain counts. Against the order of the Collector, an appeal lies and eventually either a revision or a writ lies to the High Court. After his removal, someone by way of indirect election from amongst the members of the Panchayats or the Panchayat Samiti is elected as the....
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....hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. (1999) 1 SCC 738 The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will onl....