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S. Subbarayudu Vs. the District Collector, Nellore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 433 of 1976
Judge
Reported inAIR1977AP308
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantS. Subbarayudu
RespondentThe District Collector, Nellore and ors.
Appellant AdvocateP.A. Chowdary, Adv.
Respondent AdvocateGovt. Pleader, ;P. Babul Reddy and ;M.V. Ramana Reddy, Advs.
Excerpt:
.....1 rule 10 of code of civil procedure, 1908 - writ appeal against addition of sixth respondent as party in writ petition - petitioner in writ petition sought mandamus directing respondents not to construct maternity sub-center in any place other than originally decided location - sixth respondent was resident and rate-taxpayer of village in which location of maternity sub-center was subsequently shifted - sixth respondent cannot be considered as necessary party - whether he was proper party - proper parties are parties whose presence is not necessary for making an effective order but whose presence may facilitate settling of all questions that may be involved in controversy - petitioner as well as sixth respondent were fighting for location of same maternity sub-center in one locality..........samithi has decided to locate the maternity centre is survey no. 194/1. a lady in the main village ramapuram has donated a site of 12 cents in survey no. 154, which is on the main-road of badwal to kanigiri accessible to all the villages nearby. the site was registered in favour of the district medical officer. he further challenges the allegation that there was an earlier decision to locate the sub-centre at kakolluvaripalli and it was later altered to be shifted to ramapuram, the main village itself. the government took the decision to locate it in the main village ramapuram on 10-10-1975.4. on these averments and counter averments the learned judge directed that the 6th respondent be added as a party respondent to the writ petition.5. shri p. a. chowdary contends that the 6th.....
Judgment:

1. This writ appeal is filed against the order of our learned brother Gangadhara Rao, J. rendered in W.P.M.P. No. 3798 of 1976 granting the request of the petitioner therein to be added as the 6th respondent in the writ petition 2101 of 1976. The appellant therein is the petitioner in the said writ petition.

2. In order to give an effective disposal to this appeal, it is necessary to notice briefly how and why the writ petition has been filed and the 6th respondent in the writ petition has applied to be added as a party to it. We will refer to the parties in this judgment of ours according to their array in the writ petition was, for a writ of mandamus directing the respondents not to construct the maternity sub centre of the Primary Health Centre of Narrawada, Udayagiri Taluk Nellore District in any place other than Survey No. 194/1 of Ramapuram Revenue Village. Originally there were five respondents viz. the District Collector, Nellore; The District Medical and Health Officer; The State of Andhra Pradesh; Shri G. Kondapa Naidu, M. L. A. and the Executive Engineer, Roads & Buildings, Nellore. It is also averred in the writ petition and Vinjamur Panchayat Samithi decided to locate the Maternity sub-centre in Survey No. 194/1 of Ramapuram village in Udayagiri taluk of Nellore District from the year 1968 onwards. This is a sub-centre with a primary health centre at Narrawada and is being maintained from out of the funds of Vinjamuru Panchayat Samithi. The Government of Andhra Pradesh sanctioned the construction of a building for the sub-centre. A request was made by the District Medical and Health Officer for assignment of 3,500 sq. ft. of Government land in Survey No. 194/1 of Ramapuram village for this purpose. The District Collector addressed a communication to the Revenue Divisional Officer, Kavali to send transfer proposals for this required area. When these proceedings are taking place, the 4th respondent, who was the sitting member of the State Legislature and who was the Ex-president of Vinjamuru Panchayat actuated by extraneous circumstances, made a representation to the District Collector and to the District Medical and Health Officer, that the maternity sub-centre be shifted out of Survey No. 194/1. After inspecting the site a report was made by the Additional District Medical and Health Officer recommending that the whole extent of Survey No. 194/1 may be assigned for the purpose. However the District Collector later directed construction of the sub-centre on a private site. The said survey No. 194/1 is situated in Kokolluvaripalli hamlet, whereas the new site is located in Ramapuram the main village. The District Collector directed construction of the maternity sub-centre in this new place in the main village of Ramapuram. He gave a contract to one G. Lakshmaiah on 28-4-1976 but later cancelled it and entrusted the word to one Chennakesavulu. The construction of the Maternity sub-centre in any place other than in Survey No. 194/1 is not only illegal and contrary to the provisions of Andhra Pradesh Panchayat Samithi and Zilla Parishads Act, but it is also against the Government directions and earlier reports and is direct result of the interference of the member of the legislature. The question of locating the maternity sub-centre at a particular place is within the exclusive power of the Panchayat Samithi and the Collector has no concern. Further when once it has been decided to locate the sub-centre at Survey No. 194/1 there is no reason, excepting the ground of mala fides, to shift it from that survey number. It is on the basis of those averments a writ of mandamus as stated at the threshold of this judgment, is sought for. This wit petition has been admitted and is pending disposal.

3. In July, 1976 the 6th respondent filed W. P. M. P. No. 3798 of 1976 for adding him as a party. Incidentally he has also sought for vacating the stay granted earlier at the instance of the Writ Petitioner. In the affidavit, which the 6th respondent has filed in support of his application, he alleged that he is the President of Ramapuram Ryot Sangham which is a registered society. He presented a petition before the District Collector on behalf of himself and the ryots of Ramapuram village requesting the construction of the sub-centre building in Ramapuram village, as it would serve the interests of the public better than if it is located in the hamlet of Kakolluvaripalli. Kakolluvaripalli itself is a hamlet situated in Ramapuram village Panchayat. The Government granted sanction for construction of a building for sub-centre at Ramapuram. He disputes the allegation that the Vinjamuru Panchayat Samithi has decided to locate the Maternity centre is Survey No. 194/1. A lady in the main village Ramapuram has donated a site of 12 cents in Survey No. 154, which is on the main-road of Badwal to Kanigiri accessible to all the villages nearby. The site was registered in favour of the District Medical Officer. He further challenges the allegation that there was an earlier decision to locate the sub-centre at Kakolluvaripalli and it was later altered to be shifted to Ramapuram, the main village itself. The Government took the decision to locate it in the main village Ramapuram on 10-10-1975.

4. On these averments and counter averments the learned Judge directed that the 6th respondent be added as a party respondent to the Writ Petition.

5. Shri P. A. Chowdary contends that the 6th respondent is neither a necessary nor a proper party to the writ petition, since his application to add him as a party, does not come within the purview of Order. 1, Rule. 10(2) Civil Procedure Code. Therefore the order of Gangadhara Rao, J., directing addition of 6th respondent is without jurisdiction. We may also mention that Shri Babul Reddy appearing for the 6th respondent in the writ appeal refutes this argument and maintains that his client is a proper party, though not a necessary party, to the writ petition. He further objects to the maintainability of the Writ Appeal itself.

6. Now the question which will have to be considered on merits is whether the 6th respondent is a proper party to the writ petition or not. There is no gain-saying the fact that he is not a necessary party. A necessary party is one without whose presence no decree or order can be passed by a Court. By no stretch of imagination could it be said that without the presence of the 6th respondent in the writ petition no adjudication of the writ petition can be made and no order therein can be passed. Therefore what remains is whether the 6th respondent is a proper party. Order. 1, Rule. 10(2) is the relevant provision. It says :

'The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff, or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.'

To put it in the language of Order. 1, Rule. 10 Civil Procedure Code, it will have to be found out whether his presence in the writ petition is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. If he satisfies this requirement the 6th respondent must be held to have been rightly and properly added. If he does not satisfy this requirement then the order of Gangadhara Rao, J., must be held to be without jurisdiction, because it does not come within the ambit of the provisions governing addition of parties. We have already noted the relief of mandamus, which the petitioner seeks. He wants a direction to be given to the respondents that the maternity sub-centre be constructed only in Survey No. 194/1 and not in any other place. In support of this relief he is seeking he has made certain averments. The 6th respondent is undoubtedly a resident and rate-prayer of Ramapuram village. As a rate-prayer he is certainly interested in the location of the maternity sub-centre. He is also interested, as much as the petitioner himself in the location of the maternity sub-centre whether in the hamlet Kakolluvaripalli or in the main village Ramapuram. If the maternity sub-centre is built in Survey No. 194/1, it cannot be built in the main village Ramapuram. Likewise if it is built in Ramapuram village, it cannot be built in its hamlet Kakolluvaripalli, i.e., Survey No. 194/1. It is thus manifest that both the petitioner as well as the 6th respondent are raising a dispute in regard to the construction of the selfsame maternity sub-centre. The dispute between them is whether it should be in the hamlet or in the main village. Thus they are interested in the same subject matter. It must also be borne in mind that the 6th respondent can also maintain a separate writ petition for similar relief to locate the maternity sub-centre in the main village Ramapuram, if the petitioner is entitled to maintain the writ petition, which he has filed. If the writ petition is allowed to that extent the contention of the 6th respondent would be disallowed. If the mandamus sought in the writ petition is not granted, to that extent the cause of the 6th respondent would stand justified. Thus the petitioner as well as the 6th respondent are fighting between themselves for the location of the same maternity sub-centre in one locality or the other. Thus the 6th respondent is pre-eminently interested in the location of the sub-centre.

7. Further the petitioner has made some averments in his writ petition in respect of the writ of mandamus he is seeking. The 6th respondent in his affidavit disputes the correctness of some of these averments. The Court will have to decide, if it is inclined to go into the merits of the case, which version is true and which version is more acceptable. To put it in other words, their presence before the Court at the time of disposal of the writ petition will be necessary in order to enable it effectually and completely to adjudicate upon and settle the questions involved in the writ petition. The presence of the 6th respondent will enable the Court not only to have all the material facts and events before it, but also will help the Court to adjudicate upon the claim of the writ petitioner that the maternity sub-centre be located in Survey No. 194/1 and in no other place. If this relief is granted by the Court, the interests of Ramapuram, the main village of which the 6th respondent is a rate-payer, will adversely be affected to that extent. Thus we entertain no doubt that the presence of the 6th respondent is, necessary before the Court to enable it to effectually and completely adjudicate upon and settle all the questions involved in the writ petition. Gangadhara Rao J. has ample jurisdiction is directing his addition as the 6th respondent and we are of the opinion that the 6th respondent has been properly added.

8. We may here refer to the decision of the Supreme Court in Udit Narain Singh v. Addl. Manager Board of Revenue, Bihar, : AIR1963SC786 , Subba Rao, J., speaking for the Court held, in p. 12 of the Judgment as under :

'To summarise: 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. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.'

9. The learned Judge in p. 10 explained the nature of proper parties. They are 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 party to a writ proceeding depends upon the judicial discretion in the circumstances of each case. As we have found, the 6th respondent is a proper party. We see no reason to interfere with the discretion exercised by Gangadhara Rao, J. in directing his addition as a party respondent to the writ petition.

10. We may also refer to the material rules made by this Court under Article. 226 of the Constitution. Rule. 12 of the Rules, enables the Court to order at any stage of the proceedings either upon or without any application and on such terms as may appear to be just that the name of any party improperly joined be struck out, and that the name of any person, who ought to have been joined or whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions in the petition, be added. Needless to point out that this is wholly identical with the provisions of Order. 1, Rule. 10(2) Civil Procedure Code. In sub-rule (2) of Rule. 12 it is provided that at the hearing of the petition or application any person, who desires to be heard in opposition to the petitioner's application and appears to the Court to be a proper person to be heard, shall be heard notwithstanding that he has not been served with notice and subject to such conditions as to costs as the Court may deem fit to impose. This is going a step further than either Order. 1, Rule. 10(2) Civil Procedure Code., or sub-rule(1) of Rule. 12 of the Rules made under Article. 226 of the Constitution. Even at the hearing of the petition, any person who desires to be heard in opposition shall be heard if it appears to the Court that he is proper person to be heard. This provision confers much wider powers on the Court exercising jurisdiction under Article. 226 of the Constitution. Even at the hearing of the writ petition the Court is empowered to hear a person in opposition to the writ petition, if in its opinion he is a proper person to be heard. This fully strengthens the view which we have taken.

11. Shri P. A. Chowdary in his attempt to challenge the correctness of the addition of the 6th respondent has referred to the decisions in Amon v. Raphael Tuck & Sons Ltd., 1956 (1) All ER 273, Samarendra v. Calcutta University, : AIR1953Cal172 ; Rajagopal Rao v. State of Orissa, AIR 1956 Orissa 214; Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566; Municipal Board, Kairana, 1950 SCR 566 : (AIR 1926 Mad 836 and A. P. Agricultural University v. Mohmoodunnisa Begum, : AIR1976AP134 (FB). All these decisions point out that the plaintiff or the petitioner is dominus litis and that he should not be made to fight any person whom he does not like to do so. That is indeed a sound rule of procedure. But at the same time there are the Civil Procedure Code., and the Rules made under Article. 226 of the Constitution, which enables the Court to make persons parties, whose presence would help in effectually adjudicating upon all the points in dispute and also to hear them in opposition to the writ petition. If in the opinion of the Court the presence of a person would be helpful to effectually adjudicate upon all points in dispute, then certainly it has power to direct his addition to the cause. After all, it is the claim of the petitioner which will be adjudicated upon on its merits in the Writ Petition. It is that claim that will have to be considered on its merits. If the Court feels that any person's presence would be helpful to effectually adjudicate upon it, then certainly it is entitled to bring him into the cause. That is far different from saying that the petitioner is dominus litis. It should be borne in mind that the equally important principle of procedure is that as far as possible, multiplicity of proceedings shall be avoided. Now, if the 6th respondent is not added as a party, he may file another writ petition or a suit claiming that the maternity sub-centre shall not be located in Survey No. 194/1, but should be constructed only in the main village Ramapuram. If he is a party to the present writ petition filed by the petitioner, then there is not only an effective adjudication, but also final adjudication of the dispute raised by the petitioner.

12. The Full Bench relied upon by Shri P. A. Chowdary in A. P. Agricultural University v. Mahmoodunnisa Begum, : AIR1976AP134 (supra) is with special reference to Section 3 of the Land Acquisition Act. The said decision was rendered on the construction laid on Section 3 of L. A. Act. Therefore it does not help in the solution of the problem here. In Samarendra v. Calcutta University, : AIR1953Cal172 (supra) the question raised by the proposed respondents was incidental to the question raised by the petitioner. But here the claim raised by the petitioner himself is disputed by the 6th respondent. Therefore what is stated in Samarendra v. Calcutta University, (supra) is of no avail to Shri P. A. Chowdary. In Rajagopal Rao v. State of Orissa, (AIR 1956 Orissa 214) (supra) it was held that when an estate was abolished and the owners thereof filed a writ petition, the absence of the ryots on the land did not make the petition defective. This is an un-exceptionable proposition. Srinivasa Ayyangar, J., stated in Vaithialinga v. Sadassiva, (AIR 1926 Mad 836) (supra) that a third party to a proceeding is only a permissible party and his addition cannot generally be made. But where the Court is satisfied that his presence would be useful in effective and final adjudication of the dispute raised by the petitioner, certainly there can be an exception to the rule laid down by the learned Judge in the decision. It is not necessary to go into all those decisions referred to by Shri P. A. Chowdary in detail, once we come to the conclusion that the addition of the 6th respondent in this writ petition falls squarely and clearly within the ambit of Order. 1, Rule. 10(2) Civil Procedure Code and Rule. 12(2) of the Rules under Article. 226 of the Constitution.

13. We are therefore of the opinion that the addition of the 6th respondent, directed by Gangadhara Rao, J., is a right decision made in the exercise of the jurisdiction vested in the learned Judge. For these reasons the writ appeal is liable to be dismissed.

14. Since we are dismissing the writ appeal on its merits, it is not necessary to go into the question whether the writ appeal is maintainable or not. Therefore we are not expressing any opinion on that question.

15. In the result the writ appeal is dismissed with costs. Advocate's fee Rs. 150/-.

16. Even as we completed dictation of this judgment Shri A. Panduranga Rao, on behalf of Shri P. A. Chowdary has prayed for leave to appeal to the Supreme Court. We entertain no doubt as to the correctness of the view we have taken. Further the statutory provisions are clear. Moreover we find full support to the view we have taken from the decision of the Supreme Court in Udit Narain Singh v. Addl. Member Board of Revenue. Bihar, : AIR1963SC786 . For these reasons we do not think that this matter need be further considered by the Supreme Court. The request for leave to appeal to Supreme Court is consequently rejected.

17. Appeal dismissed.


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