MOTILAL Vs. BALKRUSHNA BALIRAM LOKHANDE

JUDGEMENT

(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 :

(2.) In the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari through LRs. Smt. Lilabai Ramchandra Rangari and others v. Vishwanath Champat Naik and another, reported in 2011(5) Mh.L.J. 193, it is held in Para 9.1 that in M.M.T.C. Ltd. v. Commissioner of Commercial Tax and others, reported in AIR (2009) 1 SCC 8, it is nowhere laid down that a writ of certiorari can be issued under Article 226 of the Constitution of India to a private (only) respondent or then in 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.