Concept Of “Necessary Party” In Writ Petition Is Far Broader Than In A Purely Civil Suit: J&K High Court

Shedding light on a much broader application of Order 1 Rule 10(2) concerning writ petitions a bench of Justices Tashi Rabstan & M A Chowdhary observed,

“The Writ Court cannot keep itself confined merely to the litigants appearing before it or on the record available nor will it keep itself confined only to the lis before it, but will also take into account the consequences or the effect which the decision will have or is likely to have on the interests of others who may not be wholly necessary for decision of the issue at hand…Viewed from this angle, the concept of necessary party in a purely Civil Suit and a Writ Petition cannot be one and the same”.

Background:

The case stemmed from a writ petition filed by residents of Sozeth and Ranbirgarh (Writ Petitioners) seeking a directive to prevent authorities from interfering with their land-filling activities. Farooq Ahmad Sheikh and Shaheen Farooq (Applicants/Appellants) challenged this petition, arguing they were necessary parties as their adjacent land would be directly impacted by the filling and potential construction.

The Writ Court, however, dismissed the Applicants/Appellants' request to be impleaded, citing a lack of established title and doubts about their claims. This dismissal prompted the Applicants/Appellants to file a Letters Patent Appeal (LPA) before the High Court.

Assailing the order the appelants/applicants through counsel Areeb Javed Kawoosa argued that their interests were directly involved in the writ petition and that the unauthorized constructions were detrimental to their property. They also highlighted discrepancies in the petitioners' claims and the adverse impact on their property access and use.

The respondents, however, contested the plea arguing that the appellants had no legitimate claim to the land in question and were not necessary parties to the writ proceedings. They maintained that the appellants' allegations were unsubstantiated and irrelevant to the relief sought in the petition.

Court Observations:

Scrutinising the principles of necessary and proper parties in writ petitions versus civil suits the bench cited the Supreme Court's ruling in "Prabodh Verma & Ors. v. State of Uttar Pradesh & Ors.", and noted that individuals who would be vitally affected by a judgment must be included in writ petitions, even if they were not directly involved in the initial dispute.

Deliberating on the contours of “necessary party” viz a viz a writ petition in contrast to a civil suit the court said,

“Unlike in a Civil Suit, for being a proper or a necessary party, where the applicant has to show a fair semblance of title or interest, the applicant, in a Writ Petition, has to satisfy the Court as to whether the applicant will be vitally affected by the decision to be taken in the Writ Petition”.

Criticising the writ court's narrow interpretation of Order 1 Rule 10 CPC regarding the impleadment of necessary parties the bench stated that the concept of the necessary party in a purely Civil Suit and a Writ Petition cannot be the same, as the scope of the necessary party in a Writ Petition is much wider than in a Civil Suit.

“The High Court, invoking Writ jurisdiction, looks beyond the parties appearing before it and must ensure that not only the persons, who are essential for the purpose of the disposal of the case, but also those, who will be vitally affected by the order to be passed, are made parties so that nothing is decided behind their back”, the bench reasoned.

Applying these principles to the case at hand, the court held that the Writ Court erred in solely focusing on the title disregarding the potential impact on the Applicants/Appellants' land use and access and emphasized the need to ensure all potentially affected parties are heard to achieve a complete and just resolution.

The High Court thus set aside the writ court's order and allowed the appellants to be impleaded as respondents in the writ petition.

Case Title: Farooq Ahmad Sheikh Vs Tariq Ahmad Malik

Citation: 2024 LiveLaw (JKL) 124

Mr Areeb Javed Kawoosa, Advocate appeared for the petitioners, Mr M. A. Qayoom and

Mr Mohsin-ul-Showkat Qadri, Sr. AAG represented the respondents.

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