IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1603 of 2014 Date: 16.12.2014 Between:
Smt. Rongala Durga … Appellant And Smt. Ch. Chinni Vijayalaxmi & others.
… Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1603 of 2014 JUDGMENT: (Per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) When we checked up this matter, we find that the registry has committed a mistake while registering this appeal accepting the 3rd respondent – State of Andhra Pradesh, Municipal Administration and Urban Development (L2) Department as being party respondent. According to us, this should have been checked up noting the cause title of the writ petition and also that of the impugned judgment and order that State of Andhra Pradesh was not a party. Addition or substitution can only be done by the Court and Court alone when the lis is pending. It cannot be done by a litigant of its own even by following the correct provision of law.
In this case, the registry should not have been entertained and registered the appeal by seeing the cause title in the writ petition. Since it is the fault of the registry in other words Court, hence it has to correct such mistake.
The maxim actus curie neminem gravabit will apply here. We accordingly correct the mistake. Let the description of the 3rd respondent herein be read as it is in the cause title of the writ petition i.e., The Government of Andhra Pradesh, Municipal Administration and Urban Development (L2) Department, represented by its Principal Secretary, be read as party third respondent and substituted deleting word ‘State’ accordingly in consonance with writ petition and this shall be corrected by the registry. It appears that the learned Single Judge passed the impugned judgment and order against one of the non-existent party, namely, the 2nd respondent in the writ petition, for Government of Andhra Pradesh is not a sui juris. Under the provision of Article 300 of the Constitution of India it is the State of Andhra Pradesh, which is to be sued, not the Government. According to us, Government is formed by the peoples’ representative and the same is changeable. There is no perpetuation of any Government. The perpetual succession and the element of perpetuation are in the State, and that is why Article 300 of the Constitution of India has provided who would be the sui juris in the case of State Government and it is mentioned specifically as follows:
“300. Suits and proceedings – (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution -
(a) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.”
Even before the Constitution came into existence, under Section 79 of the Code of Civil Procedure who would be sued in case of State and central Government. This provision is similar to that of Article 300. Provision of the C.P.C. has been adopted by the Writ Rules of this Court. Section 79 of the Code is also reproduced hereunder:
“79. Suits by or against Government – In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be –
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.”
We notice from the impugned judgment and order that a mandate has been given to the 2nd respondent in the writ petition, which is a non-existent party under the eye of law. In other words, real person has not been made party. Such final order in our view is nullity. This mistake fatally technical one cannot be corrected unless the lis is reopened.
Under these circumstances, we feel that the impugned order cannot be sustained on the above ground alone and it is a nullity and the same is accordingly set aside.
The writ appeal is accordingly allowed and the writ petition is restored to file. In the event, the writ petitioner makes a suitable application for amendment of the cause title as indicated above within seven days from the date of receipt of a copy of this order, His Lordship shall decide the matter afresh in accordance with law without being influenced by the earlier decision.
Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J Date: 16.12.2014 ES