The Supreme Court has held that any writ order passed without impleading an affected or necessary party is invalid in law. The Court ruled that the right to be heard cannot be sacrificed on procedural grounds and must prevail in writ proceedings.
New Delhi: In an important judgment reinforcing the principles of natural justice, the Supreme Court of India has held that any order passed by a High Court in writ jurisdiction without impleading an affected or necessary party is liable to be set aside solely on that ground.
The Court made it clear that a person whose rights are adversely affected by a judicial order must be given an opportunity of hearing, even in writ proceedings under Article 226 of the Constitution.
The Apex Court also ruled that when an issue of non-joinder of a necessary party is raised in an intra-court appeal, the High Court must deal with it meaningfully.
If the High Court finds that such an allegation has merit, it should either remand the matter back to the Single Judge or decide the case on merits itself, instead of dismissing the appeal on technical grounds.
The judgment was delivered by a Division Bench comprising Justice Dipankar Datta and Justice Augustine George Masih while hearing an appeal challenging a decision of the Allahabad High Court. Emphasising the primacy of fairness and the right to be heard, the Bench observed:
“In the circumstances before us, the bar created by Rule 5 must yield to the foundational principles of natural justice, namely, the right to be heard and the right to a fair hearing. It is trite law that the principle of non-joinder, though originating from the Code of Civil Procedure, 1908, applies with equal force to writ proceedings. An order passed in writ jurisdiction without impleading an affected or necessary party is liable to be invalidated on that ground alone. Since the courts exist to administer justice, the rigours of Rule 5 would not apply and stand relaxed in a case of the present nature where the order under challenge is one, passed by a Single Judge on a petition under Article 226 of the Constitution, adversely affecting the rights of a party who was not a party-respondent before the Single Judge.”
The Court further clarified the approach that High Courts must adopt when such objections are raised at the appellate stage. It held:
“For the foregoing reasons, we hold that where an allegation of nonjoinder of a necessary party is raised in an intra-court appeal, the High Court, if satisfied that such allegation has merit, should either remand the matter to the Single Judge or decide it on the merits. Such an approach while not militating against the object and purpose of Rule 5 would, at the same time, accord with the maxim ubi jus, ibi remedium”.
The case arose from a dispute relating to the allotment of a fair price shop. The appellant had been granted a license to run the shop after the license of the first respondent was cancelled for breach of terms and conditions.
The cancellation order, along with the appellate order affirming it, was challenged by the first respondent before the Allahabad High Court through a writ petition. However, the appellant—whose rights were directly affected—was not made a party to the writ proceedings.
The writ petition was allowed by a Single Judge of the High Court, and the order cancelling the license of the first respondent was set aside. As a result, the official authorities were required to reinstate the first respondent as the fair price shop licensee, thereby prejudicially affecting the appellant.
Aggrieved by this, the appellant filed an intra-court appeal before the Division Bench of the High Court, contending that the order was passed without giving him an opportunity of hearing.
However, the Division Bench dismissed the appeal as not maintainable by relying on Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and a Full Bench decision in Sheet Gupta v. State of U.P. (2010). The appellant was instead granted liberty to seek a review before the Single Judge.
The appellant then approached the Supreme Court, challenging both the judgment of the Division Bench and the order passed by the Single Judge.
While examining the matter, the Supreme Court noted serious flaws in the reasoning adopted by the Division Bench. It observed that the Division Bench neither reproduced Rule 5 of Chapter VIII nor properly examined the Full Bench ruling relied upon.
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The Court stated:
“On a plain reading of Rule 5, the Special Appeal of the appellant would appear to be barred. However, there is much more than what is plainly visible. In our considered opinion, the Special Appeal ought not to have been held not maintainable for the reasons we propose to assign”.
The Bench further noted that the Full Bench in Sheet Gupta had not examined the precise issue involved in the present case, namely, whether a non-party to a writ petition could maintain an appeal with leave when the challenged order was passed by a government authority under a statute. On this aspect, the Court observed:
“Since this was not a question which the Full Bench was required to examine, whatever has been laid down in Sheet 5 Gupta (supra) on interpretation of Rule 5 may not be decisive in a situation under consideration. This aspect of the matter escaped the attention of the Division Bench which, erroneously, dismissed the appeal as not maintainable”.
The Supreme Court also emphasised that procedural rules should not be applied in a manner that blocks access to justice. It held that although Rule 5 restricts special appeals in certain writ matters, it must be interpreted in a way that furthers justice and fairness. In this context, the Bench held:
“In our further considered opinion, the law laid down by this Court in Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd. and State of Punjab v. Amar Singh that an appeal could be preferred with an application for leave to appeal, provided the non-party appellant demonstrates that either the order under challenge is prejudicial to his interest or adversely affects him or is binding on him, would be applicable.”
The Court also highlighted that denying an appeal to an affected non-party would leave such a person without an effective remedy. It observed:
“Also, the maxim ubi jus, ibi remedium cannot be ignored. A party suffering an adverse order in judicial proceedings where he is not noticed, because he was not a party, cannot be left without a remedy. Although he can apply for a review, the scope of a review is much narrow than an appeal and would not provide a remedy as effective as an appeal”.
Taking note of the fact that the appellant had also challenged the Single Judge’s order out of abundant caution, the Supreme Court ultimately set aside the judgment of the Division Bench and restored the special appeal to its original number. While directing the Division Bench of the High Court to hear the appeal expeditiously, the Court clarified:
“The same may now be heard by the Division Bench and disposed of expeditiously, since we are not inclined to allow the appellant to run the fair price shop for the present.”
The appellant was represented by AOR Pranav Krishna, along with Advocates Lavam Tyagi and Srishti Mayank, while the respondent was represented by AOR Sanjeev Malhotra along with other counsel.
This judgment is significant as it reiterates that procedural rules cannot override the basic principles of natural justice and that courts must ensure that no person’s rights are affected without giving them a fair opportunity to be heard.
Case Title: Abhishek Gupta v. Dinesh Kumar
(Neutral Citation: 2025 INSC 1406)
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