Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (1962)

Introduction

Who are the necessary and proper parties in a writ petition seeking a writ of certiorari? Is it sufficient to implead only the tribunal or authority whose order is being challenged, or must the persons who benefit from that order also be made parties?

The Supreme Court answered these questions in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786; 1963 Supp (1) SCR 676.

The judgment is a leading authority on the distinction between a necessary party and a proper party, particularly in proceedings under Article 226 of the Constitution. The Court held that in a writ petition seeking to quash an order of a tribunal or authority, the tribunal or authority concerned is a necessary party, and the persons in whose favour the impugned order has been made are also necessary parties where their rights would be directly affected.

Case Details

Case Name

Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar & Anr.

Year

1962

Citation

AIR 1963 SC 786; 1963 Supp (1) SCR 676

Court

Supreme Court of India

Bench

K. Subba Rao, S.J. Imam, N. Rajagopala Ayyangar and J.R. Mudholkar, JJ.

Date of Judgment

19 October 1962

Case Number

Civil Appeal No. 586 of 1962

Relevant Provision

• Article 226, Constitution of India

Subject Matter

Necessary party, proper party, writ of certiorari, Article 226, impleadment of parties, tribunal or authority whose order is challenged, and persons directly affected by the impugned order.

Facts of the Case

The dispute arose concerning the settlement of a country liquor shop at Dumka Town.

Initially, Hari Prasad Sah was the licensee of the shop. His licence was cancelled by the Excise Authorities, following which applications were invited for settlement of the shop.

A lottery was conducted on 22 March 1961, and the settlement was made in favour of Jadu Manjhi.

Hari Prasad Sah challenged the settlement before the Commissioner of Excise. His appeal was dismissed.

He then approached the Board of Revenue, Bihar, and obtained a stay against the settlement.

During the proceedings, Jadu Manjhi died.

A fresh lottery was subsequently conducted, and the appellant, Udit Narain Singh Malpaharia, was selected for the settlement of the liquor shop.

Hari Prasad Sah again challenged the settlement and obtained an interim stay from the revenue authorities.

Eventually, after the necessary formalities and furnishing of security, the shop was settled in favour of Udit Narain Singh Malpaharia and a licence was issued to him.

Hari Prasad Sah thereafter approached the revenue authorities again.

The Board of Revenue ultimately passed an order concerning the settlement of the shop.

Udit Narain Singh Malpaharia challenged the order by filing a petition under Article 226 of the Constitution before the Patna High Court, seeking a writ of certiorari.

However, the High Court rejected the writ petition in limine, primarily because the parties in whose favour the impugned order had been passed had not been properly impleaded.

The matter was then brought before the Supreme Court by special leave.

Issue Before the Supreme Court

The principal issue was:

Who are the necessary and proper parties to a writ petition seeking a writ of certiorari under Article 226 of the Constitution?

More specifically:

1. Whether the tribunal or authority whose order is sought to be quashed is a necessary party?
2. Whether the persons in whose favour the impugned order was made are also necessary parties?
3. What is the distinction between a necessary party and a proper party?
4. Can a writ petition seeking certiorari be effectively decided in the absence of persons whose rights would be directly affected by the order?

Arguments of the Parties

Appellant

The appellant contended that the writ petition could be maintained without impleading every person who might have an interest in the dispute.

It was argued that the principal purpose of the writ petition was to challenge the legality of the order passed by the revenue authorities.

Therefore, the authority which passed the impugned order was the principal party against whom the writ was sought.

Respondents

The respondents contended that the persons who had obtained rights or benefits under the impugned order were directly interested in the proceedings.

Any order quashing the decision would directly affect their rights.

Therefore, they were necessary parties and the writ petition could not properly proceed in their absence.

Judgment of the Supreme Court

The Supreme Court upheld the principle that the writ petition could not properly proceed without joining the persons directly affected by the order.

The Court explained the distinction between a necessary party and a proper party.

It held:

A necessary party is one without whom no effective order can be made.

A proper party, on the other hand, is one:

In whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved.

This distinction has become one of the most frequently cited formulations in Indian procedural law concerning necessary and proper parties.

Who Is a Necessary Party?

The Supreme Court’s formulation is straightforward:

A necessary party is a person without whom no effective order can be made.

The presence of such a person is indispensable to the proceedings.

If the person is not joined, the court cannot effectively grant the relief sought.

Thus, the test is not merely whether the person has some interest in the matter.

The test is whether the person’s presence is essential for an effective order.

Who Is a Proper Party?

A proper party occupies a slightly different position.

The Court explained that:

A proper party is a person in whose absence an effective order can still be made, but whose presence is necessary for a complete and final decision on the question involved.

Therefore, while a necessary party is indispensable, a proper party assists the court in achieving a complete and final adjudication.

This distinction is particularly important when courts decide applications for impleadment.

Special Importance in Writ of Certiorari

The judgment becomes particularly significant because the proceedings involved a writ of certiorari.

A writ of certiorari is generally sought to quash an order passed by a judicial or quasi-judicial authority.

The Supreme Court explained that the authority or tribunal whose order is being challenged must be before the court.

This is because the writ operates upon the record and decision of that authority.

The authority must therefore be given an opportunity to defend the legality of its decision and, where necessary, produce the relevant record before the High Court.

Accordingly, the tribunal or authority whose order is sought to be quashed is a necessary party to a writ petition seeking certiorari.

Persons in Whose Favour the Order Was Made

The Supreme Court went further.

It held that the persons in whose favour the impugned order has been made are also necessary parties where the order directly affects their rights.

This is because quashing the order would adversely affect the rights or interests which they obtained through that order.

They must therefore be given an opportunity of being heard.

The principle can be expressed simply:

If the court is asked to quash an order which directly benefits X, X must ordinarily be before the court.

This ensures compliance with the principles of natural justice.

Why the Beneficiary Must Be Impleaded

Consider a simple example.

Suppose a licensing authority grants a licence to A.

B challenges the order before the High Court and seeks a writ of certiorari to quash the licence.

If B succeeds, A’s licence will disappear.

A is therefore not merely an interested outsider.

A’s legal rights are directly affected by the proposed order.

Consequently, A must be given an opportunity to defend the order.

This is the practical reason behind the rule laid down in Udit Narain Singh Malpaharia.

Tribunal or Authority Must Also Be a Party

The Court also emphasised the special position of the tribunal or authority whose order is challenged.

There is an important distinction between an appeal and a writ of certiorari.

In an ordinary appeal, the subordinate court whose decree is challenged does not ordinarily become a party.

The appellate court exercises jurisdiction over the subordinate court within the judicial hierarchy.

A writ of certiorari, however, operates differently.

The High Court is exercising its constitutional supervisory jurisdiction over a tribunal or authority which may be outside the ordinary appellate structure of the High Court.

The authority must therefore be made a party so that the High Court can effectively exercise its jurisdiction.

Connection With Natural Justice

The principle is closely connected with audi alteram partem — the right to be heard.

If a person has obtained a legal benefit through an administrative, judicial or quasi-judicial order, and another person asks the court to quash that order, the beneficiary should ordinarily have an opportunity to defend the order.

The rule therefore serves two purposes:

1. Procedural fairness — the affected person gets an opportunity to be heard.
2. Effective adjudication — the court can decide the dispute after hearing all persons whose rights are directly involved.

Distinction Between Appeal and Certiorari

This aspect of the judgment is particularly useful for law students.

Appeal	Writ of Certiorari
Challenges the decision of a subordinate court within an appellate hierarchy.	Challenges an order of a tribunal or authority exercising judicial/quasi-judicial functions.
The subordinate court is ordinarily not impleaded as a respondent.	The tribunal or authority whose order is challenged is a necessary party.
Governed by the applicable appellate procedure.	Exercised under constitutional judicial review.
Focus is generally on the appellate jurisdiction provided by law.	Focus includes jurisdictional error, legality and procedural fairness.

The Supreme Court stressed that the two situations cannot simply be treated as identical.

Necessary Party vs Proper Party

The distinction can be remembered through two questions:

Necessary Party

Can the court make an effective order without this person?

If the answer is No, the person is a necessary party.

Proper Party

Can the court make an effective order without this person, but would their presence be necessary for a complete and final decision?

If the answer is Yes, the person is a proper party.

This two-step test is extremely useful in questions involving Order I Rule 10 CPC as well as constitutional writ proceedings.

Application in the Present Case

The High Court had rejected the petition at the threshold.

The Supreme Court considered the question of proper constitution of the writ proceedings.

Because the impugned order affected the rights of persons in whose favour the order had been made, those persons could not simply be excluded from the proceedings.

The Court therefore affirmed the importance of joining the affected parties in proceedings seeking certiorari.

The decision emphasised that a writ court should not make an order directly affecting a person’s rights without that person being before the court and having an opportunity to be heard.

Broader Principle of Impleadment

The judgment is not limited to writ petitions concerning liquor licences.

Its broader significance lies in the formulation of the tests for necessary and proper parties.

The same distinction is repeatedly applied by Indian courts in:

• civil suits;
• appeals;
• writ petitions;
• administrative proceedings;
• service matters;
• property disputes; and
• proceedings involving competing claims to statutory benefits.

The nature of the proceeding may change, but the fundamental question remains:

Is the person’s presence indispensable for an effective order, or is it necessary only for complete adjudication?

Legal Principles Established

1. Necessary Party

A necessary party is one without whom no effective order can be made.

2. Proper Party

A proper party is one whose presence is necessary for a complete and final decision, even though an effective order may technically be made in their absence.

3. Authority Passing the Impugned Order

In a writ of certiorari, the tribunal or authority whose order is challenged is a necessary party.

4. Beneficiary of the Impugned Order

A person in whose favour the impugned order has been made is also a necessary party where their rights are directly affected.

5. Natural Justice

A person whose rights are directly affected by the proposed writ order must ordinarily be given an opportunity of hearing.

6. Certiorari Is Different From Appeal

The procedural position of the authority whose order is challenged in a writ of certiorari is different from that of a subordinate court in an ordinary appeal.

7. Effective Adjudication

The rules relating to parties exist to ensure that courts can make effective orders and completely decide the controversy before them.

Ratio Decidendi

The ratio of Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar is that in a writ petition seeking certiorari, the tribunal or authority whose order is challenged is a necessary party, and persons in whose favour that order was made are also necessary parties where their rights would be directly affected by its quashing. A necessary party is one without whom no effective order can be made, whereas a proper party is one whose presence is necessary for a complete and final decision even though an effective order can be made in their absence.

Why This Case Is Important

This judgment is one of the foundational authorities for understanding necessary and proper parties in writ proceedings.

Its importance goes beyond Article 226.

Whenever a court is asked to pass an order that will directly affect the rights of a person who is not before it, the question of impleadment becomes important.

The decision therefore reinforces a basic principle of procedural fairness:

A court should not ordinarily decide the rights of a person behind their back.

At the same time, the Court’s distinction between necessary and proper parties prevents every person remotely connected with a dispute from being treated as indispensable.

Practical Application

Suppose a statutory authority grants a licence to A.

B challenges the order under Article 226 and asks the High Court to issue a writ of certiorari quashing the licence.

In such a case:

• The statutory authority whose order is challenged → Necessary party.
• A, the beneficiary of the licence → Necessary party because A’s rights will be directly affected.
• A person who has only an indirect or remote interest → May not necessarily be a necessary party.

This example captures the central principle of the case.

Law Student and Judiciary Relevance

For examinations, remember the formula:

Necessary Party = Without whom no effective order can be made.

Proper Party = Effective order possible without them, but their presence is necessary for complete and final decision.

For writ of certiorari, remember:

Tribunal/Authority + Beneficiary of Impugned Order = Necessary Parties.

Also remember the distinction:

Appeal → subordinate court ordinarily not made party.

Certiorari → tribunal/authority whose order is challenged must be made party.

ALSO READ: eputy Commissioner, Hardoi v. Rama Krishna Narain

Key Takeaways

Concept	Principle
Necessary Party	A person without whom no effective order can be made.
Proper Party	A person whose presence is necessary for complete and final adjudication.
Article 226	Constitutional jurisdiction for issuing writs including certiorari.
Certiorari	A writ used to quash an order of a judicial or quasi-judicial authority.
Tribunal/Authority	Necessary party when its order is challenged by certiorari.
Beneficiary	Person in whose favour the impugned order was made may be a necessary party where directly affected.
Natural Justice	Directly affected persons should ordinarily be heard.
Appeal	Subordinate court whose order is challenged is ordinarily not impleaded as respondent.
Impleadment	Depends upon whether the person’s presence is necessary for effective or complete adjudication.

Conclusion

Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar provides a clear and enduring distinction between necessary and proper parties.

A necessary party is indispensable because no effective order can be made in their absence. A proper party, although not indispensable for making an effective order, is necessary for a complete and final decision.

In a writ of certiorari, the authority whose order is challenged must be before the court, and persons whose rights are directly affected by the impugned order must also be given an opportunity to defend their interests.

The central lesson is simple: the court must identify every person whose rights will be directly affected by the relief sought and ensure that such persons are properly before the court before making an order affecting those rights.