Government a necessary party in cases involving State: Supreme Court

Courts in India are governed by procedural laws which govern the trails and the proceedings before them. While there are one sets of rulings which hold that procedure is only a hand-maid of justice and thus should not come into play to preclude a court from ensuring substantive justice, there are equal other sets of rulings which decree that parties not following procedures of the court are not entitled to relief. 

It is in the respect of the second line of decisions that we bring to you a recent decision of the Supreme Court which declares that a suit/claim would not be entertained in which Government was required to be made a party to the dispute and not having so done. Holding that it was essential to ensure that Government was made aware of the litigation by making it a party, the Supreme Court declared that procedural law clearly specifies the situation in which Government is required to be made a party and the law to this regard is settled that if the Government is not made a party, the litigation cannot be proceeded. The Court was dealing with a situation wherein an appeal was filed by the Government officials without making Government a party. In this scenario the Court declared that the appeal could not have been decided without the Government being a party.

The Bench explained the law in the following terms;

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. 

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 :- 

“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 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 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.

Have a look at the decision.