THE DISTRICT COLLECTOR, SRIKAKULAM & ORS.versusBAGATHI KRISHNA RAO & ANR.

                         [2010] 7 S.C.R. 280


A      THE DISTRICT COLLECTOR, SRIKAKULAM & ORS.
                               v.
               BAGATHI KRISHNA RAO & ANR.
                (Civil Appeal No.2754 of 2007)
                             JUNE 2, 2010
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.)

        Code of civil procedure, 1908:

c      s.100 rlw s. 79, 0.27 r.1, 0.1, r.9, proviso and Article 300
  of Constitution of India - Second appeal filed by District
  Collector and District Forest Officer - State not impleaded as
  a party - HELD: State of Andhra Pradesh was a party before
  the trial court as well as before the first appellate court - The
  relief sought by the plaintiff was declaration of title of suit land
0
  which according to appellants was in favour of State of Andhra
  Pradesh and the suit land in physical possession of Forest
  Department - Thus, keeping in view the provisions of s. 79,
  r.1 of' 0.27, proviso to r.9 of 0.1 of the Code and Article 300
E of the Constitution, prima facie the State was a necessary
  party - Second appeal filed by the officials was not
  maintainable - High Court decided the second appeal without
  considering this important aspect of the matter - Judgment
  of High Court set aside - Case remanded to High Court to
  decide the second appeal afresh - Appellants permitted to
F file an application for impleadment of State of Andhra
  Pradesh as appellant, which would be considered by High
  Court in accordance with law - Constitution of India, 1950 -
  Article 300 - Party.

G        The State of Punjab Vs. The Okara Grain Buyers
    Syndicate Ltd., Okara & Anr. (1964) SCR 387 =AIR 1964 SC
    669; Ranjeet Mal Vs. General Manager, Northern Railway,
    New Delhi & Anr., (1977) 2 SCR 409 =AIR 1977 SC 1701;
    Kali Prasad Agarwala (Dead by L.Rs.) & Ors. v. Mis. Bharat
H                                 280
 DISTRICT COLLECTOR, SRIKAKULAM & ORS. v.                281
        BAGATHI KRISHNA RAO & ANR.
Coking Coal Limited & Ors. (1989) 2 SCR 283 =AIR 1989 A
SC 1530; Sangamesh Printing Press v. Chief Executive
Officer, Taluk Development Board (1999) 6 SCC 44; Chief
Conservator of Forests, Government of A. P. Vs. Collector &
Ors (2003) 2 SCR 180 = AIR 2003 SC 1805; Bal Niketan
Nursery School Vs. Kesari Prasad (1987) 3 SCR 510 =AIR B
1987 SC 1970, relied on.
      s. 100 - Second appeal - Substantial question of law -
High Court deciding the second appeal without framing any
substantial question of law though making reference to the     C
pleadings taken in the second appeal, it discussed and
<:J.ecided the question of law raised therein - HELD: Matter
remanded to High Court to decide the second appeal afresh
after framing the substantial question of law.

                    Case Law Reference:                        D
    (1964) SCR 387           relied on            para 8
    (1977) 2 SCR 409         relied on            para 9
    (1989) 2 SCR 283         relied on            para 10
                                                               E
    (1999) s sec 44          relied on            para 11
    (2003) 2 SCR 180         relied on            para 12

    (1987) 3 SCR 510         relied on            para 13
                                                               F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2754 of 2007.

    From the Judgment & Order dated 10.04.2006 of the High
Court of Judicature, Andhra Pradesh at Hyderabad in Second
Appeal No. 122 of 2006.                                        G

    June Choudhary, C.K. Sucharita for the Appellants.

     R. Venkataramani, P. Raja Sekhar, K. Subba Rao,
Aniruddha P. Mayee for the Respondents.                        H
    282       SUPREME COURT REPORTS               [2010] 7 S.C.R.


A         The following order of the Court was delivered

                                ORDER

       1. The present appeal has been preferred against the
  judgment and order dated 10.4.2006 passed by the High Court
8 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
C 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
o adrneasuring 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
E 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
F 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
G 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
H
  DISTRICT COLLECTOR, SRIKAKULAM & ORS. v.                    283
         BAGATHI KRISHNA RAO & ANR.
been dismissed vide impugned Judgment dated 10.04.2006.               A
Hence, this 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
                                                                      B
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      C
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          D
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, Manda! Revenue
Officer and the District Forest Officer impleading original two       E
 plaintiffs as respondents. The original 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,          F
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.
                                                                      G
     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.                                   H
    284         SUPREME COURT REPORTS                [2010] 7 S.C.R.

A         (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."
B
          (c)

          {d)                  "

          Thus, it is evident from the aforesaid relief clause that
c         plaintiffs had sought declaration of title and possession
          over the suit land and 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
D         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
E 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.
F
       6. Rule 1 of Order XXVll 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
G that behalf and shall be verified by any person whom the
  Government may so appoint.

       7. Article 300 of the Constitution deals with legal
  proceedings by or against the Union of India or State and
H provides that in a suit by or against the Government, the authority
                                                        .
  DISTRICT COLLECTOR, SRIKAKULAM & ORS. v.                   285
         BAGATHI KRISHNA RAO & ANR.

to be named as plaintiff or defendant, as the case may be; in         A
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 8
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 C
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         D
General Manager of the Northern Rai!ways without impleading
the Union of India. The Court held as under:-

     "The Union of India represents the Railway Administration.
     The Union carries administration through different servants.     E
     These servantc 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    F
     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 Kera/a v. The General Manager,            G
     Southern Railway, Madras AIR 1976 SC 2538]

    10. In Kali Prasad Agarwala (Dead by L.Rs.) & Ors. v. Ml
s. Bharat Coking Coat Limited & Ors. AIR 1989 9c 1530,
while considering an issue whether the suit lands had vested,         H
    286       SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A   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
B         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."
c
       11. In Sangamesh Printing Press v. Chief Executive
  Officer, Taluk Development Board (1999) 6 SCC 44, the State
  was not impleaded as a party before the Trial Court in a money
  recovery suit. The same was dismissed on the ground of non-
D impleadment of necessary party. During appeal, an application
  was made under 0. 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,
E
          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
F         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
G         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
H that writ cannot be entertained without impleading the State if
  DISTRICT COLLECTOR, SRIKAKULAM & ORS. v.                     287
         BAGATHI KRISHNA RAO & ANR.

relief is sought against the State. This Court had drawn the A
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 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 XX.VII B
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.                                                               c
     13. In Ba/ 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.                      D

    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      E
important aspect of the matter. Shri Anup Chaudhary, Ld.
Senior Counsel has submitted that in order to meet the ends
of justice, this 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         F
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.                                          G

      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               H
   288      SUPREME COURT REPORTS                   [2010) 7 S.C.R.


A 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.
  How€ver, it would be desirable that such a course is adopted
B 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 and remand the case to the High Court to
  decide afresh after framing the substantial question of law. The
C 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.
D
  R.P.                                               Appeal allowed.