Summary
A person who was not impleaded in a writ petition but whose licence was adversely affected by the Single Judge's order may maintain an intra-court special appeal with leave, despite the bar in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952; the Division Bench's dismissal of the appeal as not maintainable was set aside and the appeal restored.
Issues
- Whether a special appeal by a non-party, adversely affected by a Single Judge's order in an Article 226 petition challenging an appellate order of an authority, is barred by Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.
- Whether the Full Bench decision in Sheet Gupta v. State of U.P. was decisive of that question.
Provisions considered
- Chapter VIII Rule 5, Allahabad High Court Rules, 1952The rule bars a special appeal from a Single Judge's Article 226 order concerning an appellate or revisional order of the Government or an authority under a specified Act. The Court read it purposively, as meant to prevent a third tier of adjudication for a party who had already litigated, and held that its rigour yields where the appellant was a necessary party never impleaded before the Single Judge. (¶¶ 11, 13, 14, 15, 16, 19)
- Article 226, Constitution of IndiaThe order under challenge was passed by a Single Judge in writ jurisdiction; the Court held that the principle of non-joinder applies to writ proceedings and an order passed without impleading an affected party is liable to be invalidated on that ground. (¶¶ 15, 16)
Held
- The Full Bench in Sheet Gupta correctly interpreted Rule 5, but it was not asked whether a non-party to the writ petition could appeal with leave; its ruling was therefore not decisive of that situation, and the Division Bench erred in treating it as such. (¶ 14)
- Rule 5 is to be read so as to advance access to justice. Its object is to avoid a third tier of adjudication on the same lis between parties who have already contested it before the statutory forum and the Single Judge. (¶ 15)
- The bar in Rule 5 yields to the principles of natural justice. Non-joinder applies to writ proceedings, and where a Single Judge's Article 226 order adversely affects a person who was not a party, Rule 5 does not apply and stands relaxed. (¶ 16)
- Following Jatan Kanwar Golcha and Amar Singh, a non-party may appeal with leave if the order prejudices or binds him. The maxim ubi jus, ibi remedium supports this, since review is narrower than an appeal and not an equally effective remedy. (¶¶ 17, 18)
- Where non-joinder of a necessary party is raised in an intra-court appeal and found to have merit, the High Court should either remand the matter to the Single Judge or decide it on the merits. (¶ 19)
Result
Appeals disposed of; Division Bench judgment set aside and the special appeal restored for expeditious hearing; respondent no.1, already reinstated in the fair price shop, to continue subject to the result of the special appeal; parties left free to raise their contentions, including on the appellant's affidavit; no opinion on merits.