Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.2754 of 2007

The District Collector, Srikakulam & Ors.        ….Appellants  

Versus

Bagathi Krishna Rao & Anr.                   ...Respondents

O R D E R

1. The present appeal has been preferred against the judgment  

and  order  dated  10.4.2006  passed  by  the  High  Court  of  Andhra  

Pradesh  at  Hyderabad  in  Second  Appeal  No.122/06  by  which  it  

dismissed  the  Second  Appeal  filed  by  the  appellant  affirming  the  

judgments  and order  of  the  First  Appellate  Court  dated 15.4.2005  

passed  in  Appeal  Suit  No.121/2000  and  of  the  Trial  Court  dated  

28.7.2000 passed in O.S. No.26/94.

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  

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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  

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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  

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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  

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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 :-

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“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  

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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  

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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  

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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  

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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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