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Makhan Lal Chakraborty Vs. S.K. Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1888 of 1953
Judge
Reported inAIR1954Cal208
ActsConstitution of India - Article 226
AppellantMakhan Lal Chakraborty
RespondentS.K. Chatterjee and ors.
Appellant AdvocateArun Kumar Dutta, Adv.
Respondent AdvocateA. Roy and ;Nani Coomar Chakravarty, Advs.
Cases ReferredR. v. Rippon Corporation
Excerpt:
- .....hearing (or make a prior application), and ask for leave to join the proceedings, or to have the rule served upon it.(4) the court may order that a petition used as grounds for the issue of a rule nisi be amended and/or a rule nisi be amended, by the addition of parties.(5) if a necessary party or a party likely to be affected by the writ or order, or a party whose presence may be necessary to make the writ effective is not before the court, the court may, either upon an application made for that purpose, or of its own motion direct that such a party be added and the rule nisi served upon him, or simply that the rule nisi be served upon him, or even that he may be allowed to be present at the hearing without being served with a rule nisi. in such a case, the person served with the rule.....
Judgment:
ORDER

Sinha, J.

1. This is an application which arises out of Civil Revision Case No. 1888 of 1953. That rule was taken out by the petitioner against the Secretary Board of Secondary Education West Bengal & four members of an 'ad-hoc Committee' appointed by the Board of Secondary Education, West Bengal, to administer the affairs of the Kanchrapara Boys' High School. The short facts are as follows. There is a School at Kanchrapara, called the Kanchrapara Boys' High School. It came into existence in 1949, and provides a High School education for nearly seven hundred refugee boys. The school was given provisional recognition by the University of Calcutta and the recognition was extended from time to time. The school was being run by a Managing Committee and the petitioner was the elected secretary thereof.

2. On or about the 2nd June 1953, the first respondent, as the secretary of the Board of Secondary Education (hereinafter referred to as the 'Board') wrote to the petitioner, that the president of the Board had been pleased to direct that certain steps should be taken to right the affairs of the school, one of which was the appointment of an ad hoc committee to take over charge of the administration of the School.

3. The petitioner contends that the appointment of the 'ad hoc Committee' is illegal and ultra vires. A rule was issued on the 29th June 1953, upon the opposite parties abovenamed, to show cause why a Writ in the nature of mandamus should not be issued directing them to forbear from giving effect to the order No. 10984/0 dated the 2nd June 1952 or why a Writ in the nature of prohibition should not issue, prohibiting them from proceeding with the said order.

4. The rule came up for hearing before me on the 28th July 1953 and was heard for several days. After Mr. Dutt had opened his case, Mr. Roy on behalf of the opposite parties took several preliminary points, one of which was that opposite party No. 1 was merely a subordinate ministerial officer and no writ lay against him. He further argued that the application was not maintainable in the absence of the Board. Mr. Dutt argued that under Section 18 of the West Bengal Secondary Education Act 1950, the Secretary exercised the powers of the Board and it was not necessary to make the Board a party. He however took time to consider his position and now an application has been made to add the board as a party to this rule. Mr. Dutt states that his client has done so as a measure of abundant caution, but he has not given up the point that under Section 18, the secretary represents the board.

5. Mr. Roy has taken two points in opposition. Firstly he says that in an application under article 226 of the Constitution, if the rule has been taken out against the wrong party, an amendment cannot bf: allowed, but the only thing to do, in such a case, was to discharge the rule. Secondly, he says that, there are no averments in the petition that the petitioner made any demands for justice from the Board or that it was refused. These being essential allegations for the maintainability of the application, it is argued that an addition of parties would be of no effect, since the rule was bound to be discharged against the board.

6. So far as the procedure to be adopted for amendment of the pleadings or addition of parties, no specific rules have been trained by this Court under Article 226 of the Constitution. In fact, no rules have been framed for regulating the nature of the pleadings, in -- 'Khudi Prosad Bhakat v. State of West Bengal', : AIR1952Cal798 (A), I held that until such rules were framed, the usual procedure applicable to motions should be followed and affidavits in opposition and reply should be used. Since then, this has become the established practice in such applications, both in one original and the appellate side of the Court. In the Supreme Court, rules have been framed regulating the procedure under Article 32 of the Constitution. Order XXXVI Rule 9 is as follows: 'The notice shall be served on all persons directly affected and on such other parties as the Court may direct.

provided that on the hearing of any such motion, any person who desires to be heard in opposition to the motion and appears to the Court to be a proper person to be heard shall be heard notwithstanding that he has not been served with the notice of motion and shall be liable to costs in the discretion of the Court if the order shall be made.'

7. So far as the rules in the Original Side of this Court are concerned, similar provisions exist in the case of an originating summons. Under Chapter 13, Rule 11, the summons was to be served on all persons who would be proper parties under the existing practice if the same reliefs were sought in a suit. Under Rule 12, the Judge may in all cases direct such other persons to be served with an originating summons as he may think fit. Under the English practice (R. S. C. O. Order 55, Rule 6) the practice is to amend the originating summons by adding the new parties as defendants. Rules have been framed by this Court under Section 51 of the specific Relief Act and under Ch. XXIX, Rule 5, every rule under Section 46 of that Act has to be served not only on the public servant. Corporation or inferior Court but also on any person other than the applicant who may be affected by the act to be done or forborne to show cause.

8. In -- 'Kesho Prasad Singh v. F. A. Slacke', 13 Cal LJ 390 (B), Mookerjee J. stated: 'The objection, therefore, is fatal, it is one of substance and not of mere form, for the principle has been recognised wherever writs of mandamus are issued, that if a right, title or interest in or to real property is directly involved; all persons owning or claiming the same, must as a rule be joined as parties'.

9. The English rules regarding rules nisi for a prerogative writ of mandamus are the same. Under Rule 50 of the Crown office rules, notice must be given by the order nisi to every person who by the affidavits on which the order is moved appears to be interested in or likely to be affected by the proceedings, and to any person who in the opinion of the Court or Judge, ought to have such notice (Halsbury, Vol. 9, p. 786, article 1330). Under Rule 52, in addition to the party whom the order nisi requires to show cause, any person, whether he has had notice or not, who can make it appear to the Court or Judge that he is affected by the proceedings, for a writ of mandamus may show cause against the order nisi. An order nisi may be allowed to be amended and leave granted to file further affidavits in support of the amendment, -- 'R. v. West Sussex County Council', (1921) 125 LT 407 (C). Mr. Dutt has drawn my attention to an interesting case, -- 'The Queen v. The Surveyors of Highways for Wood Ditton', (1849) 18 LJ MC 218 (D). Where the Court took judicial notice of the fact that although the rule was issued against mere ministerial officers the real party was keeping in the background and putting them forward as nominal parties. The rule was made absolute.

10. In view of all these authorities, the position appears to be as follows :

(1) In an application under Article 226 of the Constitution, all persons must be made parties, who are or are likely to be affected by the issue of a writ or order. In the case of mandamus or prohibition all parties must necessarily be before the Court who are required to obey the directions of the writ, or whose presence is necessary to make such directions effective.

(2) The artificial rules under the English practice, where in certain cases such writs can be made ex parte in the first instance, do not prevail in our Courts.

(3) Any party likely to be affected by a writ or order, may appear at the hearing (or make a prior application), and ask for leave to join the proceedings, or to have the rule served upon it.

(4) The Court may order that a petition used as grounds for the issue of a rule nisi be amended and/or a rule nisi be amended, by the addition of parties.

(5) If a necessary party or a party likely to be affected by the writ or order, or a party whose presence may be necessary to make the writ effective is not before the Court, the Court may, either upon an application made for that purpose, or of its own motion direct that such a party be added and the rule nisi served upon him, or simply that the rule nisi be served upon him, or even that he may be allowed to be present at the hearing without being served with a rule nisi. In such a case, the person served with the rule nisi or permitted to attend the hearing, would be deemed to be a party and be entitled to show cause or support or oppose a cause already shown.

(6) Such amendments should ordinarily be done upon notice to the party proposed to be added or served. There is however no rule of law which prevents an ex parte order being made in a suitable case.

(7) Upon such an amendment being effected, directions should be given for the use of affidavits and/or additional affidavits.

11. Mr. Roy has argued that where the petitioner has proceeded wholly against the wrong party, he cannot ask for an amendment. He relies on the statement of the law appearing in article. 1339 of Halsbury (Hailsham Edn.) Vol. 9, pp. 789-90, as follows--

'amendment of the writ will, however, be allowed in respect of something which is not material, as the name or title of the person or body to whom the writ is directed. -- 'R. v. Derbyshire etc. Ry. Co.', (1854) 23 LJ QB 333 (E). If however the name is wrong altogether, the writ will be quashed -- 'R. v. Rippon Corporation', (1700) 2 Salk 433 (F).'

This however applies to a writ when it has been issued. That stage will arrive when the rule nisi has been heard and made absolute. After a writ has been issued, different considerations apply to an amendment of the writ itself. A writ must be precise and accurate. It must not be vague as to the party to whom it is directed or as to the precise order or direction which that party has to carry out. Such a defect would Invalidate the writ altogether and if the defect is material it cannot be put right by amendment. Different considerations apply, however, at the stage of the rule nisi. At that stage, a defect of parties can easily be remedied. Indeed, it is at that stage when it should be remedied.

12. coming now to the facts of this particular case, it is clear that this application should succeed and the Board be made a party. The administration of all schools in West Bengal are vested in the board, under the West Bengal Secondary Education Act 1950. The exact position of a secretary is a matter which is being strongly contested in the main application and I should not pre-judge the matter except to say that it is certainly debatable. It is Mr. Roy's own case that the party really interested is the Board and that the application cannot proceed in its absence. If I discharge this rule on this technical point, it would inevitably give rise to a further application. It is the Court's duty, in proceedings under Article 226, no less than proceedings in general, to avoid, if possible, a multiplicity of judicial proceedings.

13. As regards the second point raised by Mr. Boy, it is really travelling into the merits of the matter. I cannot decide now whether the application was going to fail against the board upon any technical point. Mr. Dutt urges that the demand for justice addressed to the secretary was a sufficient demand for justice from the Board. That might well be so, but I cannot decide it in this present application.

14. My order will therefore be as follows: The Board of Secondary Education West Bengal is made a party to this application. The cause title and prayer in the petition will be accordingly amended. A copy of the rule must now be served upon the Board, returnable ten days hence. When the matter comes up again I shall give the necessary directions for further affidavits to be filed. But before the amendment is made or a copy of the rule is issued, the petitioner must pay to the opposite parties as a condition precedent, the sum of 5 gold mohurs (2 gold mohurs as the assessed hearing cost of this application and 3 gold mohurs as the hearing cost) thrown away in the main application.

15. If the sum is not paid by the 12th December, 1953, this application will stand dismissed with cost. In any event, the petitioner must pay the cost of this application to the opposite parties, assessed as aforesaid.

16. Leave is granted, as prayed for, to make consequential amendments in the prayer portion of the petition.


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