District Collector,Srikakulam & Ors vs Bagathi Krishna Rao & Anr

2. Facts and circumstances giving rise to this Appeal are that the

respondents herein filed Original Suit No.26/94 for seeking

declaration of title and possession of the suit land admeasuring

1 Ac.8.90 cents situate within the erstwhile jamindari of Tarla Estate in

Srikakulam District and for other consequential relief, i.e. permanent

injunction from interfering in any manner with the peaceful

possession and enjoyment of suit land, before the Senior Civil Judge

at Sompeta. The appellants/defendants filed written statement

contending that the suit land being forest land had vested in the State

of Andhra Pradesh and in order to substantiate the said averment it

annexed the copy of the Gazette Notification, G.O. No.650 dated

25.9.1975 according to which possession and enjoyment of land in

dispute was shown to be in favour of the Forest Department. The Ld.

Trial Court vide judgment and decree dated 28.7.2000 decreed the

suit. Being aggrieved, the appellants preferred Appeal Suit

No.121/2000 before the First Additional Judge, Srikakulam District

mainly on the ground that the plaintiffs/respondents were not in

possession and enjoyment of the suit land and it was a Government

land in physical possession of the Forest Department. However, the

appeal preferred by the appellants stood dismissed vide judgment

and order dated 15.4.2005. Being aggrieved, the appellants

preferred Second Appeal before the High Court which has also been

dismissed vide impugned Judgment dated 10.04.2006. Hence, this

2 appeal.

3. Shri Anup Chaudhary, Ld. Senior Counsel appearing for the

appellants and Shri R. Venkataramani, Ld. Senior Counsel appearing

for the respondents have made claims and counter-claims on various

issues and merit of the case. However, we are of the view that the

High Court entertained the Second Appeal which was not

maintainable for more than one reason and, particularly, that relief

sought by the plaintiffs/respondents was declaration of title in respect

of the suit land which according to the appellants has been in favour

of the State of Andhra Pradesh and in physical possession of the

Forest Department in view of Notification dated 25.9.1975. However,

State of Andhra Pradesh had not been the appellant/party before the

High Court though it was defendant no.1 before the Trial Court as

well as before the First Appellate Court. A large number of private

defendants in the Original Suit were also not impleaded as

respondents in Second Appeal before the High Court. The Second

Appeal has been filed by the three appellants, namely, District

Collector, Mandal Revenue Officer and the District Forest Officer

impleading original two plaintiffs as respondents. The original

3 defendants 4 to 11 had not been impleaded before the High Court.

Thus, the question does arise as to whether Appeal in the form it had

been presented before the High Court could be entertained without

State of Andhra Pradesh being the appellant party. More so, the

High Court did not frame any substantial question of law before

deciding the Appeal though making reference to the pleadings taken

in the Second Appeal, the Court has discussed and decided the

question of law raised therein.

4. Admittedly, it is not a case where the order passed by statutory

Authority was sought to be quashed in the suit, the relief sought in

O.S. No.26/94 had been as under:-

"a) For declaration that the plaintiffs have title and possession over the suit land.

b) For consequential relief of permanent injunction against all the defendants restraining them and their agents, subordinates, servants and workmen from ever interfering in any manner with the peaceful possession and enjoyment of the suit lands of the plaintiffs."

(c) ..................

(d) .................."

Thus, it is evident from the aforesaid relief clause that plaintiffs

had sought declaration of title and possession over the suit land and

4 further consequential relief of permanent injunction. Thus, in case

the title is also claimed by the State Government with it, we are of the

prima facie view that the State of Andhra Pradesh was a necessary

party.

5. Section 79 of the Code of Civil Procedure (hereinafter `CPC')

specifically deals with suits by and against the Government and

provides that in suits by and against the Government, the authority to

be impleaded as the plaintiff or defendant, would be the Union of

India or Central Government or the State or State Government.

Proviso to Rule 9 of Order 1 provides that non-joinder of

necessary party is fatal.

6. Rule 1 of Order XXVII CPC deals with suits by or against the

Government or by officers in their official capacity. It provides that in

any suit by or against the Government, the plaint or the written

statement shall be signed by such person as the Government may

like by general or special order authorize in that behalf and shall be

verified by any person whom the Government may so appoint.

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7. Article 300 of the Constitution deals with legal proceedings by

or against the Union of India or State and provides that in a suit by or

against the Government, the authority to be named as plaintiff or

defendant, as the case may be; in the case of the Central

Government, the Union of India and in the case of State Government,

the State, which is suing or is being sued.

8. A Constitution Bench of this Court in The State of Punjab Vs.

The Okara Grain Buyers Syndicate Ltd., Okara & Anr. AIR 1964

SC 669 held that if relief is sought against the State, suit lies only

against the State, but, it may be filed against the Government if the

Government acts under colour of the legal title and not as a

Sovereign Authority e.g. in a case where the property comes to it

under a decree of the Court.

9. In Ranjeet Mal Vs. General Manager, Northern Railway, New

Delhi & Anr., AIR 1977 SC 1701, this Court considered a case where

the writ petition had been filed challenging the order of termination

from service against the General Manager of the Northern Railways

without impleading the Union of India. The Court held as under :- 6

"The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court."

[see also The State of Kerala v. The General Manager, Southern Railway, Madras AIR 1976 SC 2538]

10. In Kali Prasad Agarwala (Dead by L.Rs.) & Ors. v. M/s.

Bharat Coking Coal Limited & Ors. AIR 1989 SC 1530, while

considering an issue whether the suit lands had vested, free from

encumbrance in the State consequent upon the issuance of

Notification under Section 3 of the Bihar Land Reforms Act, this Court

did not entertain the case observing as under :-

"In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question."

11. In Sangamesh Printing Press v. Chief Executive Officer,

Taluk Development Board (1999) 6 SCC 44, the State was not

7 impleaded as a party before the Trial Court in a money recovery suit.

The same was dismissed on the ground of non-impleadment of

necessary party. During appeal, an application was made under O. 1

R. 10 praying for impleadment of the State, however the High Court

decided the matter on merits without considering the same. This

Court observed as under :

"Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant's application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law."

12. While considering the similar case in Chief Conservator of

Forests, Government of A.P. Vs. Collector & Ors; AIR 2003 SC

1805, this Court accepted the submission that writ cannot be

entertained without impleading the State if relief is sought against the

State. This Court had drawn the analogy from Section 79 CPC,

which directs that the State shall be the authority to be named as

plaintiff or defendant in a suit by or against the Government and

8 Section 80 thereof directs notice to the Secretary of that State or the

Collector of the district before the institution of the suit and Rule 1 of

Order XXVII lays down as to who should sign the pleadings. No

individual officer of the Government under the scheme of the

constitution nor under the CPC, can file a suit nor initiate any

proceeding in the name and the post he is holding, who is not a

juristic person.

13. In Bal Niketan Nursery School Vs. Kesari Prasad AIR 1987

SC 1970, this Court held that application for impleadment of a

necessary party can be filed at any stage of proceeding provided the

Court is satisfied that exceptional circumstances prevailing in the

case, warrant the impleadment.

14. In view of the above, State of Andhra Pradesh was necessary

party. Thus, the Second Appeal filed by the officials was not

maintainable.

The High Court decided the appeal without considering this

important aspect of the matter. Shri Anup Chaudhary, Ld. Senior

Counsel has submitted that in order to meet the ends of justice, this

9 Court should grant indulgence to the appellants to file an application

for impleadment before this Court, and in case it is not willing to do

so, the judgment and order of the High Court be set aside and the

case be remanded to the High Court and appellants be given an

opportunity to file an application for impleadment of the State therein.

Shri R. Venkataramani, Ld. Senior Counsel opposed the suggestion

made by Shri Anup Chaudhary.

15. That State of Andhra Pradesh was a party before the Trial

Court as well as before the First Appellate Court. In such a fact-

situation and in order to meet the end of justice, an opportunity

should be given to the appellants to move an application for

impleadment of the State of Andhra Pradesh. Such a course is in

public interest as the State who also claim to have title over the suit

land cannot be deprived of the right to present its case before the

Court in case it looses the land. However, it would be desirable that

such a course is adopted before the High Court.

16. In view of the above, we set aside the judgment and order of

the High Court passed in Second Appeal No.122/06 dated 10.4.2006

10 and remand the case to the High Court to decide afresh after framing

the substantial question of law. The appellants are permitted to file

an application for impleadment of the State of Andhra Pradesh as

appellant and if such an application is filed, the High Court shall be at

liberty to consider it in accordance with law. With these observations,

the appeal is allowed. No costs.

................................J. (Dr. B.S. CHAUHAN)

................................

J. (SWATANTER KUMAR)

New Delhi, June 2, 2010

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