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ANIMESH JAIN versus HOME SECRETARY, U.P., THROUGH STATE OF U.P. & ANR.

High Court of Judicature at Allahabad

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Animesh Jain v. Home Secretary, U.P., through State of U.P. & Anr. - WRIT - C No. 3305 of 2003 [2003] RD-AH 173 (20 June 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 3305 OF 2003

Animesh Jain. ------ Petitioner

 Vs.

Home Secretary U.P., through

State of U.P. and Anr. ------       Respondents

______

Hon'ble Dr. B.S.Chauhan, J

Hon'ble Rajes Kumar, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for seeking a direction to the Home Secretary of the State of Uttar Pradesh to transfer the investigation to the C.B.C.I.D. in Case Crime No. 92 of 2003 Under Section 302 I.P.C. relating to Police Station Adarsh Mandi, Muzaffarnagar.

The present writ petition has been filed on the ground that the petitioner does not expect a fair investigation by the police for the reasons that the Area is dominated by the Jats and they are pressurizing the investigating Agency to involve the petitioner. Therefore, the investigation may be transferred to the C.B.C.I.D.

The Learned A.G.A. has raised preliminary objection regarding the maintainability of the writ petition as it has been filed impleading only respondent no. 1 i.e., The Home Secretary, U.P. Lucknow, through State of U.P. It has been submitted by him that the State has not been impleaded as a respondent and the writ cannot be entertained against the officer of the State without impleading the State as has been held by the Court's time and again.

In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi & Anr, AIR 1977 SC 1701, the Hon'ble Apex 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 Apex Court held as under:

"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."

While considering the similar view in Chief Conservator of Forests Government of A.P. Vs. Collector & ors; (2003) 3 SCC 472, the Hon'ble Supreme Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. The Hon'ble Apex court had drawn the analogy from Section 79 of the code of civil Procedure, 1908, 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 27 lays down as to who should sign the pleadings. No individual officer of the government under the scheme of the constitution nor under the code of civil Procedure, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

The Court also considered the provisions of Article 300 of the Constitution which provide for legal proceedings by or against the Union of India or State and held 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.

Rule 1 of Order 27 only 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 authorise in that behalf and shall be verified by any person whom the government may so appoint. The Court further held as under:

"It needs to be noted here that a legal entity-a natural person or an artificial person-can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but it is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC  mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 Of order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any sage of the proceedings."

The Court thus held that writ is not maintainable unless the Union of India or the State, as the case may be, impleaded as a party.

A Full Bench of Kerala High Court in Kerala State Vs. General Manager, Southern Railway, Madras, AIR 1965 Ker 277 held that suit is not maintainable if instituted against Railway Administration. The condition precedent for its maintainability is that it must be instituted against the Union of India.

A similar view has been reiterated by Hon'ble Apex Court in State of Kerala Vs. General Manager, Southern Railway, Madras, AIR 1976 SC 2538.

A Constitution Bench of Supreme Court in State of Punjab Vs. O.G.B, Syndicate Ltd, 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.

The Rajasthan High Court in Pusha Ram Vs. Modern Construction Co. (P) Ltd, AIR 1981 Raj 47, held that to institute a suit for seeking relief against the State, the State has to be impleaded as a party. But misdescription showing the State as Government of the State may not be fatal and the name of party may be permitted to be amended, if such an application is filed.

Thus, we reach the inescapable conclusion that the writ is not maintainable against the Government officers or the employees of the State, it lies only against the Stage and if State is not impleaded, the writ is not maintainable.

Thus in view of the above, the preliminary objection raised by the learned A.G.A. Is worth acceptance being preponderous.

In the instant case petition has been filed in a casual and cavalier manner without impleading the necessary parties. The only respondent which has been impleaded is the Home Secretary, U.P., through State of U.P. We fail to understand how the Home Secretary can be impleaded through the State; perhaps the other way round was permissible. Learned counsel for the petitioner does not ask the time for filing any amendment application or for impleading the necessary parties. The F.I.R. Seems to have been lodged at Police Station Adarsh Mandi, Shamli, District Muzaffarnagar. But in the prayer clause, reference is made to the case related to the Police Station Adarsh Mandi Muzaffarnagar. Affidavit has been filed in support of the writ petition originally, of the pairokar, without disclosing his relation with the petitioner. A supplementary affidavit was filed today in the Court explaining the relation and also for furnishing many other informations. However, no reference is given in the said affidavit that case related to the Police Station Adarsh Mandi Shamli, and not Muzaffarnagar. The practice of filing the writ petition in such a casual manner is not worth approval as it amounts to dis-service to the Court and community as a whole.

In view of the above, we do not find the petition as maintainable. It is, accordingly, dismissed. However, dismissal of the writ petition shall not prejudice the cause of the petitioner to file a properly maintainable writ petition before this Court.

20.6.2003

SB/AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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