Collector, Srikakulam & Ors. Vs. Bagathi Krishna Rao & ANR.  INSC
424 (2 June 2010)
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 ORDER
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.
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.
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.
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.
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.
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.
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."
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.
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
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.
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.
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.
& 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.
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
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."
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.
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 :
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
considering the similar case in Chief Conservator of 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.
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.
view of the above, State of Andhra Pradesh was necessary party. Thus, the
Second Appeal filed by the officials was not maintainable.
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.
Venkataramani, Ld. Senior Counsel opposed the suggestion made by Shri Anup
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.
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)