IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11437 of 2010 1. SIDHESH ARYA W/O RUP NARAIN SAH R/O VILL.- BAKHRI, P.S.- BAKHRI, DISTT.- BEGUSARAI 2. SHAIRA KHATOON W/O SHAFI AHMAD KHAN R/O VILL.- RAMPUR, PATHAN TOLI, P.S.- BAKHRI, DISTT.- BEGUSARAI 3. ANARSI DEVI W/O SHIV NANDAN SAH R/O VILL.- MAKKHACHAK, P.S.- BAKHRI, DISTT.- BEGUSARAI 4. KUMARI BINA W/O JAGDISH MAHTO R/O VILL.- MAKKHACHAK, P.S.- BAKHRI, DISTT.- BEGUSARAI 5. KIRAN YADAV W/O SRI DEVENDRA YADAV R/O VILL.- GODHIYARI, P.S.- BAKHRI, DISTT.- BEGUSARAI 6. SARITA SAHU W/O ARJUN SAH R/O VILL.- BAKHRI, P.S.- BAKHRI, DISTT.- BEGUSARAI. VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT AND HOUSING, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, BUXAR 4. THE SUB-DIVISIONAL OFFICER, BAKHRI, DISTT.- BUXAR 5. THE STATE ELECTION COMMISSION THROUGH ITS SECRETARY, SONE BHAWAN, 3RD FLOOR, BIR CHAND PATEL MARG, PATNA 6. RIPUNJAY KUMAR S/O SRI SURESH RAI R/O VILL.- RAMPUR, P.O.- RAMPUR, P.S.- BAKHRI, DISTT.- BUXAR ----------- 04 18.08.2010 The petitioners have filed this writ petition for a direction to be impleaded as a party in an earlier writ petition being C.W.J.C. No.12869 of 2009, which was allowed by this Court on 23.04.2010, without making the present writ petitioners as party or hearing them. The maintainability of this writ petition has been questioned by the stamp reporter in view of a judgment in the case of Shivdeo Singh & ors. Vs. State of Punjab & ors. since reported in AIR 1963 Supreme Court 1909. The judgment of the Apex Court in the case of Ram Janam Singh Vs. State of Uttar Pradesh and another since reported in AIR 1994 Supreme Court 1722 - 2 - paragraph-8 may also be referred. In my view, if and only if it is held that the present writ petitioners were necessary parties to the writ petition filed earlier and were not so made, can they invoke principles as contained in the aforesaid Supreme Court decision. The basis of the aforesaid decision is that an order passed in absence of necessary party is not an order validly passed and, therefore, the party can move an application for being impleaded as a party and recall of the earlier order and passing fresh orders after hearing them. Mr. B.P. Pandey, learned Senior Counsel submits that even though in the writ petition the primal challenge was to the notification issued by the State Government constituting Nagar Panchayat in the shape of Bakhri Nagar Panchayat in the district of Begusarai, the present writ petitioners were affected vitally as consequent to the Nagar Panchayat being constituted, the Panchayat elections were announced. They had contested the elections though results has not been declared. It is submitted that the State Government notification being set aside the consequence would that that there would no Nagar Panchayat in existence and the elections held would be avoided. They having taken part in the elections, thus, their participation was being avoided without them being heard. They were necessary parties to be heard. In my view, that does not make them necessary party. The challenge is not to the Panchayat elections. The challenge is to the constitution of Nagar Panchayat by amalgamation of various - 3 - Gram Panchayats. Once the said notification issued by the State Government in exercise of its plenary jurisdiction is quashed, whether prayer is made or not as a necessary consequence, the actions in respect of Nagar Panchayat would automatically, without order of the Court, fall because the Panchayat would cease to exist, the notification being quashed. It is the action of the State that was under challenge. Thus, the present writ petitioners cannot be said to be necessary parties in the said litigation. In this connection, reference may be made to the judgment of the Apex Court in the case of The General Manager, South Central Railway, Secunderabad and another Vs. A.V.R. Siddhanti and others since reported in AIR 1974 Supreme Court 1755 wherein in paragraph-17 of the reports the contention raised is noted that the employees who are likely to be affected by the decision of the case in the matter of challenge to the policy of the Government were necessary party and their non joinder was fatal to the petitioner. The Court answered the same in paragraph-20 thereof therein their Lordships have held where constitutionality of statutory rules is challenged then the parties who would be ultimately affected are not necessary parties and their non joinder would not be fatal to the writ petition. Similar contention was again raised in the case of State of U.P. and another Vs. Ram Gopal Shukla since reported in (1981) 3 Supreme Court Cases 1, which is noted in paragraph-16 of the reports, where rules were challenged in absence of parties who would be affected if the rules - 4 - were declared ultra vires. It was pleaded that in such a situation High Court ought to have dismissed the writ petition that was negatived in paragraph-16 of the reports holding that they were at best proper parties but not necessary parties. They were not necessary to be heard. Reference may also be made to a Division Bench judgment of this Court in the case of Sri Ananta Narayan Mokhopadhyay and Sri Awadhesh Narain Sinha Vs. The Union of India & others since reported in 1982 BBCJ 277 and, in particular, paragraph-4 thereof, which is quoted hereunder:- “……In my opinion, this contention has no merit, for giving a declaration whether an appropriate action of a statutory authority is ultravires the powers vested in its persons who may be adversely affected by such declaration cannot be said to be necessary parties.” There is yet another reason why the writ petition is not maintainable. No writ can lie by a judgment of this Court to a judgment of this Court itself. That being the position, the Supreme Court judgment aforesaid would not come to the aid of the petitioners and consequentially this writ petition is not maintainable. It is held to be not maintainable. Trivedi (Navaniti Prasad Singh, J.)