HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1653 OF 2014 DATED:26.12.2014 Between:
V. Nataraja Rao and another … Appellants And M. Sudheer Kumar and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1653 OF 2014 JUDGMENT: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) It appears that the writ petition has been filed against a nonexistent person as the Government of Andhra Pradesh cannot be sui juris under the provision of Article 300 of the Constitution of India as well as that of under the provision of Section 79 of the Code of Civil Procedure, 1908, which has been adopted by this Court in its Writ Rules, has not been followed. Both the aforesaid provisions are set out hereunder:
“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 and may, subject to any provisions which may be made by an 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 a 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."
"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."
It appears that the litigant did not bring this defect to the attention of the Hon’ble trial Judge and His Lordship thought that the proceeding has been lawfully instituted.
As the order has been passed in the proceeding not lawfully instituted, we therefore set aside the impugned judgment and order on that ground alone and restore the writ petition to its file for fresh hearing provided within seven days from the date of receipt of a copy of this order appropriate steps are taken by the writ petitioners bringing the necessary party in the writ petition.
The appeal is accordingly allowed on the aforesaid ground.
Pending miscellaneous petitions, if any, shall stand closed.
There will be no order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 26.12.2014 bnr