WA/1667/2014 of S. Shyamala Reddy, W/o. S. Govardhan Reddy, Vs M/s. Hindustan Petroleum Corporation Limited, on 30 December 2014

1. AIR 1981 Rajasthan 47

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA

ANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR

WRIT APPEAL No.1667 of 2014

Between:S. Shyamala Reddy,Pavitranagar,Musheerabad,Hyderabad and others.

DATE: 30.12.2014

… Appellants

And

M/s. Hindustan Petroleum Corporation Ltd.,Secunderabad and others.

… Respondents

This Court made the following:

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTAANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR

WRIT APPEAL No.1667 of 2014

Judgment:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)

This appeal is preferred against the judgment and order of theHon’ble Single Judge dated 19.12.2014, by which, His Lordship hasbeen pleased to allow the writ petition. Before we go into the merits ofthe matter, we find the writ petition has been filed amongst others,against the Government of Andhra Pradesh and the order has beenpassed thereon. Without entering into the merits of the matter, we thinkthat the impugned judgment and order has been passed on aproceeding which has not been legally instituted at all. According tous, the Government of Andhra Pradesh is not a sui juris. If any actionhas to be brought against either the Central Government or the StateGovernment, it has to be brought against the Union of India and theState not in the names of respective Government and in this case, theState of Andhra Pradesh or the State of Telangana, would have beennecessary parties. The provision of Article 300 of the Constitution ofIndia clearly mandates 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 aState may sue or be sued by the name of the State and may, subject to anyprovisions which may be made by an Act of Parliament or of the Legislatureof such State enacted by virtue of powers conferred by this Constitution, sueor be sued in relation to their respective affairs in the like cases as theDominion of India and the corresponding Provinces or the correspondingIndian States might have sued or been sued if this Constitution had not beenenacted.

(2) If at the commencement of this Constitution-- (a)any legal proceedings are pending to which theDominion of India is a party, the Union of Indiashall be deemed to be substituted for the Dominionin those proceedings; andDominion of India is a party, the Union of Indiashall be deemed to be substituted for the Dominionin those proceedings; and (b)any legal proceedings are pending to which aProvince or an Indian State is a party, thecorresponding State shall be deemed to besubstituted for the Province or the Indian State inthose proceedings."Province or an Indian State is a party, thecorresponding State shall be deemed to besubstituted for the Province or the Indian State inthose proceedings."

Moreover, by virtue of Rule 24 of the Writ Proceedings Rules,1977 framed by this Court for institution of the writ proceedings, theprovision of Section 79 of the Civil Procedure Code, 1908 (for short‘the C.P.C.’) is followed notwithstanding the provision of explanationunder Section 141 of the C.P.C.

Section 79 of the C.P.C., provides as follows:

"79. Suits by or against Government.-- In a suit by or against theGovernment, the authority to be named as plaintiff or defendant, as the casemay be, shall be-

(a) in the case of a suit by or against the CentralGovernment, the Union of India; andGovernment, the Union of India; and(b)in the case of a suit by or against a State Government,the State."the State."

However, the learned counsel for the 1[st] respondent-writpetitioner submits that this defect is not an incurable one, it is merely atechnical one and in support of this contention, he has relied on a judgment of the learned single judge of Rajasthan High Court in thecase of Pusha Ram vs. Modern Construction Company[[1]]. In paragraph-13 of the said judgment, His Lordship hasruled as follows:

Moreover, the alleged defect is one with regard tomis-description of the parties, and is not fatal. The meredescription of the parties can be corrected by the Court atany time.

We are not in full agreement with His Lordship as we thinkwhen the provision of Constitution mandates in a particular way aproceedings is to be instituted, no one can change it and it has to bedone in that manner alone. If it is allowed to be done in a differentmanner, that would amount to re-writing the Constitution. No Court oflaw can afford to change the constitutional provision by judicialprescription, particularly, Article 300 of the Constitution of India is anoriginal provision of Constitution and it cannot be struck down nor beread down by any Court, for, there is no ground of such challenge. It isfor the Parliament to amend with amending power and the language ofArticle 300 is a mandatory one and the Court cannot overlook it. TheCourt is bound to follow the same. According to us, the aforesaidfinding of the Hon’ble trial Judge without reading the provision ofArticle 300 and without any discussion whatsoever is per incuriam tothe highest degree and we are therefore of the view that this judgmentis not a good law as it is contrary to the Constitution.

Moreover, Section 79 of the C.P.C., also mandated before theConstitution came into force, the same way. The Court cannotchange it. But, we are in agreement with His Lordship that it is acurable defect. But the stage of curing in our view is time bound viz.,before final disposal. Had this matter been pending before HisLordship, then we would have permitted the writ petitioner to apply foramendment. After the matter is disposed of finally with defect, it cannot be cured at all. Here, final order has been passed. This order,in our view, has been passed on an incompetent proceeding. Therefore, the order is a nullity because the same has been passed asagainst a non-existent party. Hence, we set aside this judgment andon that ground alone, we restore the writ petition for fresh hearingenabling to remove the defect. In the event, the 1strespondent-writpetitioner takes suitable steps for amendment of the cause title inaccordance with the provision of Article 300 of the Constitution readwith Section 79 of the C.P.C., and the Writ Rules of this Court withinseven days from the date of receipt of a copy of this order, the Hon’bletrial Judge shall decide the matter afresh in accordance with law,uninfluenced and without being swayed by earlier decision andobservations. The Hon’ble trial Judge shall decide the matter inaccordance with law within a period of three months from the date ofproduction of this order.

The writ appeal is accordingly allowed.

Consequently, pending miscellaneous petitions, if any, shallalso stand closed. No costs.

_________________

K.J. SENGUPTA, CJ

Date: 30thDecember, 2014

_________________

SANJAY KUMAR, J

L.R. Copy to be marked : Yes

Pnb/gbs