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.1317 OF 2014
DATED: 20.11.2014 Between:
V.Subhadra … Appellant And The Government of Andhra Pradesh and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.1317 of 2014
JUDGMENT: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta)
This appeal has been preferred by one Smt. V.Subhadra, who is respondent No.8 in Writ Petition No.4205 of 2013.
Learned counsel for the appellant has taken a technical but very important and serious point, that, we feel, needs serious consideration.
The undisputed fact, which is relevant for the purpose of this decision, is as follows:
Respondent Nos.8 to 25 herein filed the Writ Petition making the then Government of Andhra Pradesh as a party respondent and also the Officers of the then Government of Andhra Pradesh. The Hon’ble Trial Judge decided the matter on merit and thereby disposed of the Writ Petition and granted relief as prayed for therein. On the first day, when the matter came up for hearing, it was pointed out firstly that the State of Andhra Pradesh was not made a party rather the then Government of Andhra Pradesh was made a party. The Writ Petition was filed before bifurcation of the State and now, two States have been created. One is, State of Telangana and another is, State of Andhra Pradesh. Perhaps, in this context, during pendency of the Writ Petition, before delivery of the order and judgment, miscellaneous application being No.19419 of 2014 was filed intending to substitute the word ‘Telangana’ in the place of ‘Andhra Pradesh’. In this Miscellaneous Petition, there is no mention that respondent No.1 is incorrectly described as Government of Andhra Pradesh.
Learned counsel appearing for the appellant has drawn our attention that no Government either Central or State is sued in terms of Article 300 of the Constitution of India. It is the Union of India and the State are the sui juris not the Governments. We therefore, set out the Article 300 of the Constitution of India 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.
No attempt was made to make an application in the direction of deleting the word ‘Government’ and to get recorded ‘State’ in its place. This was not pointed out to the Hon’ble Trial Judge. According to us, reading the constitutional provision above, at the time of filing, the State of Andhra Pradesh not Government of Andhra Pradesh was the sui juris but it was not made party. In other words, litigation was filed against the non-existent party and any order passed against non-existent party is inoperative. Therefore, the defect is absolutely incurable unless lis revives, and the judgment rendered at this stage is also void as far as the States are concerned, now, both the States have come into existence.
Therefore, on that ground, we set aside the judgment of the Hon’ble Trial Judge and restore the Writ Petition to file for fresh hearing. The hearing will be taken up, if the writ petitioners file suitable application for amendment of the cause title changing the name of the first and second respondents with a suitable word as per the constitutional provision above and if such an application is made within seven days from the date of receipt of the copy of the order, revived Writ Petition will be heard out in terms of this order afresh. If no such application is made, obviously, the Writ Petition will stand dismissed automatically on that ground as above.
The Writ Appeal is accordingly allowed. No costs.
Consequently, miscellaneous petitions, if any pending, shall stand closed.
20th NOVEMBER, 2014.
K.J. SENGUPTA, CJ SANJAY KUMAR, J kvni