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ASHOK GAUR versus STATE OF U.P.AND OTHERS

High Court of Judicature at Allahabad

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Ashok Gaur v. State Of U.P.And Others - WRIT - C No. 8552 of 2004 [2004] RD-AH 428 (3 August 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.  8552 OF 2004

Mohd Israil -------- Petitioner

Versus

District Magistrate, Allahabad & anr.---- Respondents

______________

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

Hon'ble D.P. Gupta, J.

This writ petition has been filed for staying the recovery of Rs.11,605/- as arrears of land revenue in pursuance of  the impugned Recovery Certificate/Citation dated 21.12.2001.

The Recovery Certificate has been challenged without challenging the basic order, on the basis of which Recovery Certificate/Citation  has been issued. It is not permissible in law to challenge the Recovery Certificate without challenging the basic order.

In the instant case, petitioner's case has been that he could not run the brick kiln because of the interim order of the Civil Court, and therefore, the question of paying the licence fee for running the brick kiln for the said period does not arise. The tax has been imposed by the Zila Panchayat, Allahabad, and it has been sent to the District Collector, Allahabad for recovery as arrears of land revenue. The Zila Panchayat, Allahabad has not been arrayed as respondent in the petition. State has also not been made a party. Petition is liable to be dismissed for want of necessary party.

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.

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 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 State and if State is not impleaded, the writ is not maintainable.

Petition is, accordingly, dismissed. Interim order passed earlier, if any, stands vacated.

3.8.2004

AKSI


Copyright

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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