JUDGMENT B.S. Chauhan, J.
1. This special appeal has been preferred against the judgment and order of the learned single Judge dated 5.3.2002, by which the writ petition of the respondent-petitioner has been allowed.
2. Shri Shishir Kumar, learned counsel for the petitioner has submitted that the writ petition was not maintainable as Union of India has not been impleaded as respondent. Submitting that even if respondent-petitioner wants to execute the judgment and order passed by the learned single Judge, as Union of India had not been the party, it can refuse to accept it.
3. The respondent-petitioner in person submitted that the appellant respondents have not raised this issue before the learned single Judge, therefore, it cannot be permitted to be raised. Non-joinder of a party is not fatal and Union of India is not a necessary party, therefore, the objection raised on behalf of the appellants is not worth substance.
4. We have considered the rival submissions made by learned counsel for the parties and perused the record only for the purposes of this preliminary issue.
5. Undoubtedly, it appears from the judgment and proceedings that no such objection could be raised before the learned single Judge. However, being a pure question of law, such an objection can be entertained at this stage also.
6. It is settled proposition that a pure question of law, which does not require any investigation of fact, can be raised at any stage of the proceedings. An issue which requires investigation of facts, cannot be allowed to be agitated. (Vide Ratan Lal Sharma v. Managing Committee, 1993 (4) SCC 10 ; St. Arunchallai Pillai v. Southern Roadways Ltd., AIR 1960 SC 1191 ; A.M. Allison v. State of Assam, AIR 1957 SC 227 ; Cantonment, Ambala v. Pyare Lal, AIR 1966 SC 108 ; State of U. P. v. Dr. Anupam Gupta, 1992 (3) AWC 1804 (SC) : AIR 1992 SC 932 ; Bhanwar Lal v. T. K. A. Abdul Karim, AIR 1992 SC 2166 ; Rajeshwari Amma v. Joseph, AIR 1995 SC 719 ; Commissioner of Income Tax v. U. P. Forest Corporation, AIR 1998 SC 1125 ; P. R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 ; State of Punjab v. R.N. Bhatnagar, (1999) 2 SCC 330 ; Oil and Natural Gas Commission v. M. C. Chelland Engineers S.A., (1999) 4 SCC 327 ; Rajasthan Agricultural University v. Ram Krishna Vyas, (1999) 4 SCC 720 ; Warner Hindustan Ltd. v. Collector of Central Excise, (1999) 6 SCC 762 ; Atlas Export Industries v. Kotak & Co., (1999) 7 SCC 61 and Ram Kumar Agrawal v. Thawar Das, 1999 (4) AWC 3341 (SC) : (1999) 7 SCC 303).
7. In Ramesh Chandra Sharma v. Udham Singh Kamal and Ors., (1999) 8 SCC 304, the Hon'ble Supreme Court has held that a plea, for which no foundation has been laid before the trial court or Tribunal, cannot be entertained in writ jurisdiction.
8. Similar view has been reiterated in Gopichand Gupta v. Jain Plastic Industry, 2002 (5) SCC 274 ; Andhra Pradesh State Electricity Board and Ors. v. J. Venkateswara Rao and Ors., (2003) 1 SCC 116 and Sahadevan alias Sagadevan v. State, 2003 (1) SCC 534.
9. Thus, in view of the above, the preliminary issue raised by the petitioner-respondent is worth examining and they are permitted to raise the issue being pure question of law.
10. Nearly a Constitution Bench of the Hon'ble Supreme Court, in Udit Narain Singh Malpaharia v. Member, Board of Revenue, Bihar and Ors., AIR 1963 SC 786, has dealt with the issue as who are the necessary parties, formal parties and proper parties and held as under :
"Necessary party is one, without whom no order can be made effectively ; a proper party is one, in whose absence an effective order cannot be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding............Any order that may be issued behind the back of such a party, can be ignored by the said party. Summons must be served on all persons directly affected...............That a party against whom relief is sought, should be named in the petition. It is equally clear that all parties affected by that order should also be necessary parties to the petition.....................It would be against all principles of natural justice to make an order adverse to them behind their back ; and any order so made could not be effective one. They were, therefore, necessary parties before the High Court."
11. The Apex Court further dealt with the issue as to whether such a necessary party can be permitted to be impleaded at a belated stage and held that if a prayer is made to implead a party at a belated stage, i.e., at the time of final arguments, it must be rejected.
12. The Hon'ble Supreme Court has consistently held that in absence of necessary party, writ petition cannot be entertained. In Prabodh Verma v. State of U. P. and Ors., AIR 1985 SC 167, the Hon'ble Supreme Court held that if there are large number of persons who may be adversely affected if an order is passed in favour of the petitioner, few of them must be impleaded in representative capacity if it is not possible to implead all of them, but no order could be passed effectively in absence of such adversely affected persons.
13. In Bal Niketan Nursery School v. Kesari Prasad, 1987 (2) AWC 133 (SC) : AIR 1987 SC 1970, the Hon'ble Supreme Court examined the scope of Order I, Rule 10 of the Code of Civil Procedure, 1908 and explained the necessity of impleadment of a necessary party, observing that necessary party must be impleaded in the petition otherwise the judgment could not be enforced/executed.
14. In Ram Swarup and Ors., v. S.N. Maira and Ors., 1999 (1) SCC 738, the Apex Court held that if a right has been conferred upon a particular person, it cannot be taken away by the Court as a consequence of litigation between other parties without impleading such an affected person. The Court was dealing with a surplus land allotted to landless persons who had been given possession thereof and the High Court had entertained the writ petition on behalf of the original tenure-holder without impleading such allottees. The Hon'ble Supreme Court held that such allottees were necessary parties.
15. Similar view has been reiterated in Ishwar Singh v. Kuldip Singh, 1995 (Supl) (1) SCC 179 ; Bhagwanti and Ors. v. Subordinate Services Selection Board, Haryana and Ors., 1995 (Supp) (2) SCC 663 ; Central Bank of India v. S. Satyam and Ors., 1993 (3) AWC 1685 (SC) : AIR 1996 SC 2526 ; J. Jose Dhanapaul v. S. Thomas and Ors., (1996) 3 SCC 587 ; Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh and Ors., AIR 1998 SC 331 ; Azhar Hasan and Ors., v. District Judge, Saharanpur, 1998 (3) AWC 2024 (SC) : (1998) 3 SCC 246 ; Sushma Suri v. Government of National Capital Territory of Delhi and Anr., (1999) 1 SCC 330 ; L. Chandrakishore Stngh v. State of Manipur and Ors., (1999) 8 SCC 287 and B. Ramanjini and Ors. v. State of Andhra Pradesh and Ors., (2002) 5 SCC 533.
16. In Madhya Pradesh Rajya Sahkari Bank Maryadita v. Indian Coffee Workers Co-operative Society Ltd. and Ors., 2002 AIR SCW 3511, the Hon'ble Supreme Court examined a case where the appellants as well as the respondents had been granted lease of plots by the State. Appellants had been granted the same land earlier in time and the said lease stood cancelled and then subsequently re-granted. Respondents' lease had also been cancelled but restored in a writ petition filed by them in the High Court. The plea had been taken by the appellants that the lan d granted to the respondents was part of land earlier granted to them. The Court held that the appellants were necessary parties in the petition filed by the respondents earlier as lease could not be granted to the respondents without hearing the appellants in the earlier writ petition.
17. Thus, in view of the above, it is settled legal proposition that any person, who may be adversely affected, is a necessary party. Granting any relief to any person, behind the back of the necessary party would amount to a flagrant violation of the principles of natural justice as the person concerned is being deprived of his right without affording him an opportunity of hearing.
18. Non-joinder of a party may not be fatal but in view of proviso to Order I Rule 9 of the Code of Civil Procedure, which was added by an amendment in 1976, non-joinder of a necessary party is always fatal.
19. Therefore, we are of the considered opinion that in the instant case, as the Union of India has not only to bear the expenses etc. but is also made liable to give effect to the judgment and order of the learned single Judge, is a necessary party and not a formal party.
20. In Ranjeet Mal v. General Manager, Northern Railway, New Delhi and 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."
21. While considering the similar view in Chief Conservator of Forests, Government of A. P. v. Collector and 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 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 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.
22. Rule 1 of Order XXVII 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 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 nonjoinder 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 I, C.P.C. mandates that no suit shall be defeated by reason of the misjoinder or nonjoinder 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 I, C.P.C. 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 stage 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.
23. A Full Bench of Kerala High Court in Kerala State v. 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.
24. A similar view has been reiterated by Hon'ble Apex Court in State of Kerala v. General Manager, Southern Railway. Madras. AIR 1976 SC 2538.
25. A Constitution Bench of Supreme Court in State of Punjab v. 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.
26. In Union of India v. Harpal Dass Madhyani, AIR 1979 Pat 18, it has been held that suit was not maintainable against the Railway Administration as it could be filed against the Union of India, which was a necessary party.
27. The Rajasthan High Court in Pusha Ram v. 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 mis-description 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.
28. 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.
29. Thus, in view of the above, we hold that the preliminary objection raised by the learned counsel for the appellant that writ petition was not maintainable as Union of India, a necessary party, has not been impleaded, has merit. The appeal is allowed only on that ground. The impugned judgment and order dated 5.3.2002 is hereby set aside. There will be no order as to costs.