B. S. Chauhan, J. - (1.) -This writ petition has been filed for seeking a direction to the Home Secretary of the State of Uttar Pradesh to transfer the investigation to the C.B. C.I.D. in Case Crime No. 92 of 2003 under Section 302, I.P.C. relating to police station Adarsh Mandi, Muzaffarnagar.
(2.) THE present writ petition has been filed on the ground that the petitioner does not expect a fair investigation by the police for the reasons that the Area is dominated by the Jats and they are pressurising the investigating agency to involve the petitioner. THErefore, the investigation may be transferred to the C.B. C.I.D. The learned A.G.A. has raised preliminary objection regarding the maintainability of the writ petition as it has been filed impleading only respondent No. 1, i.e. the Home Secretary, U. P., Lucknow, through State of U. P. It has been submitted by him that the State has not been impleaded as a respondent and the writ cannot be entertained against the officer of the State without impleading the State as has been held by the Courts time and again. In Ranjeet Mal v. General Manager, Northern Railway, New Delhi and another, 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."
(3.) WHILE considering the similar view in Chief Conservator of Forests, Government of A. P. v. Collector and others, (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. 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 non-joinder 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 or Order I, C.P.C. mandates that no suit shall be defeated by reason of the misjoinder or non-joinder 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.;