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CASE NO.:

Appeal (civil) 8580 of 1994

PETITIONER:

CHIEF CONSERVATOR OF FORESTS GOVT. OF A.P.

RESPONDENT:

COLLECTORS AND ORS.

DATE OF JUDGMENT: 18/02/2003

BENCH:

SYED SHAH MOHAMMED QUADRI & ASHOK BHAN

JUDGMENT:

JUDGMENT

2003 (2) SCR 180

The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. These two appeals are from the common

judgment of a Division Bench of the High Court of Andhra Pradesh in writ

Petition (C) No. 3414 of 1982 and Appeal Suit No. 2291 of 1986 dated 24th

January, 1989.

The appeals arise the same facts and one set of the parties is common. The

subject matter of litigation is an extent of acres 2423,37 in Jatprole

Jagir, Kollapur Taluk, Mahboobnagar District in the erstwhile the Nizam's

State of Hyderabad. After the accession of the Nizam's State of Hyderabad

with the Union of India, the Andhra Pradesh (Abolition of Jagirs)

Regulations, 1358 Fasli (hereinafter referred to as 'the Regulations') came

into force on September 20, 1949. Under that Regulation, all Jagirs,

including the Jatprole Jagir, stood abolished from that date and their

administration stood vested in the State. Raja S.V. Jagannadha Rao was the

last Jagirdar. Respondent Nos. 3 and 4 are his legal representative

[hereinafter referred to as the Pattedars']. It is the case of the

pattedars that when the State took over the Jagir, the Forest Department of

the State took under its control the forest land, measuring acres 1,20,824.

However, the lands comprised in Survey No.11 of Asadpur village measuring

acres 1523 and Survey No. 168 of Malachinthapalli village measuring acres

9000 continued to remained in the possession of the Raja as his patta

lands. Soon thereafter, Notification No. 282 under Section 29 of the Andhra

Pradesh (Telengana Area) Forest Act, 1355 [Fasli for short, 'the Forest

Act'] was issued on December 4, 1950. The notification enumerated fourteen

villages comprising of an extent of 93.030 acres of Kollapur taluk

Mahboohangar District, which was named as Kollapur range. It appears that a

notification under Section 30 of the Forest Act was also issued but that

notification is not on record. In the year 1953, re-survey of the erstwhile

Jagir was conducted. The lands in question, namely, Survey No. 40 (old) was

assigned Survey no. 11 and Survey No. 241 (old) was assigned Survey No.

168; however, the finalisation of the Survey was done in 1962. The

Pattedars filed an application under Section 87 of the Andhra Pradesh

(Telengana Area) Land Revenue Act, 1317 Fasli [For short, 'the land Revenue

Act'] to rectify the mistake noted in the settlement record pursuant to the

said re-survey. The mistake was alleged to be that the name of the Khatedar

was not shown against the said Survey numbers which where shown as

'Mahasura' (protected). The District Collector, after conducting the

necessary enquiry and on a joint inspection in which the Land Record

Assistant and the Forest Range Officer participated and in which working

plan was produced showing the area as the patta of the late Jagirdar,

passed an order on April 25, 1966 directing rectification of the settlement

record. Based on the said order, the Director of Settlement rectified the

records and issued a supplementary set war on May 11, 1966.

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Under the Forest Act, a person who transports forest produce is required to

obtain transit permit. Though in the past, the Pattedars were transporting

forest produce on obtaining transit permit, it was , however, denied to

them on their application made on October 14, 1966. It is worth noticing

that the tehsildar of those villages recommended granting of transit

permits showing the lands as patta lands. It was for the first time mat the

Forest Department appeared to have taken the plea that the lands in

question were forest lands and the Chief Conservator of Forest (Appellant

No. 1 in Civil Appeal No. 8580 of 1994) expressed that the lands in

question were forest land and doubted they were patta lands of the

Pattedars. The doubt expressed by the Chief Conservator of Forest in regard

to the nature of the said lands let to a further probe into the matter as

to whether the lands comprised in the aforementioned survey numbers were

treated as part of Jagir at the time of taking over the jagir or whether

they were treated as patta lands of the Raja. In view of the queries made

by the Chief Conservator of Forest, the Collector, Mahboobnagar District

formulated as many as five questions and directed the Tehsildar to furnish

replies thereto. On may 2, 1972, the Tehsildar replied that the lands in

question were patta lands and assessed to land revenue; there was nothing

on record to show that they were taken over along with the Jagir and other

forest area under the supervision of the Government. A letter No. D. Dis.

J/2706/72 dated 21st October, 1972 from the R.D.O. addressed to the

Collector discloses that from the accounts maintained for the period prior

to the re-survey in the year 1953, rectification of the record and issuance

of supplementary setwar, it was proved that the lands in question were the

personal property of the late Raja. Further, on January 16, 1974, a letter

was addressed by the Director of Settlement to the Chief Conservator of

Forest that the lands in question were in possession of the respondents

prior to the abolition of Jagirs and that the matter did not require any

further examination as the rectification of record was made under Section

87 of the Land Revenue Act. There is a reference to the report of the

R.D.O. dated 31st October, 1975, which was made on inspection and after

making local enquiries, stating that the lands were in possession of the

Pattedars as private patta land. While so, the Government of Andhra Pradesh

proposed to acquire the lands in question which were likely to be submerged

upon completion of the Srisailam Project. Two notifications were issued

under Section 4 of the Land Acquisition Act, 1894. The first was issued on

January 31, 1975 proposing to acquire 410 acres out of the land in Survey

No. 11 in Asadpur village and the second was issued on November 4, 1976

proposing to acquire an extent of 45 acres and 20 guntas of land in Survey

No. 168 in Malachintapalli village for Srisailam Project. However, the

Government of Andhra Pradesh issued orders cancelling the said

notifications issued under Section 4 of the Land Acquisition Act, 1894 and

withdrawing from the acquisition, on the ground that the said lands were

Government lands, on February 16, 1978. The said order was assailed by the

Pattedars in Writ Petition (C) No. 2084 of 1978 before the High Court of

Andhra Pradesh. The High Court quashed the recital in the impugned order of

the Government that the said lands belonged to the Government but in other

respects maintained the same by partly allowing the writ petition on

February 21, 1979. This gave rise to filing of a declaratory suit by the

Pattedars and ordering further enquiry into the matter by the Government of

Andhra Pradesh.

In view of the dispute between the two departments of the Government with

regard to the title to the lands in question, the Government of Andhra

Pradesh issued orders on 17th August, 1979 directing the Commissioner of

Survey, Settlement and Land Record to make an enquiry under Section 166-B

of the Land Revenue Act and to pass a speaking order after hearing the

parties concerned. While the enquiry was pending, the Pattedars filed the

suit (O.S. No. 73 of 1979, which was re-numbered as O.S. 7 of 1984) in the

court of the learned Subordinate Judge, Wanaparthy, Mahboobnagar District,

for a declaration of title, recovery of compensation for the lands in

question and for rendition of accounts. Pursuant to the said order of the

Government, the Commissioner conducted an enquiry, heard both the parties

and opined that the order of the Collector, passed under Section 87 of the

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Land Revenue Act, was correct and did not call for any interference there

with. That order was passed by the Commissioner on December 5, 1981. The

Government apparently accepted that order of the Commissioner as no further

steps were taken by it to correct or set aside that order. However, the

doubt in the mind of the Chief Conservator of Forest still persisted and he

filed Writ Petition (C) No. 3414 of 1982 in the High Court of Andhra

Pradesh challenging the order of the Commissioner of Survey, Settlement and

Land Record dated December 5, 1981. The trial court, after conducting trial

and on consideration of the evidence on record, decreed the suit with

costs, insofar as the reliefs of declaration of title and rendition of

accounts but declined the relief of award of compensation/ damages by

judgement and decree dated March 25, 1985. Aggrieved by the judgement and

decree of the learned Subordinate Judge, the defendants - the Land

Acquisition Officer, Mahboobnagar District and the Government of Andhra

Pradesh represented by the Collector, Mahboobnagar - filed Appeal No. 2291

of 1986, before the High Court of Andhra Pradesh. The afore-mentioned Writ

Petition (C) No. 3414 of 1983 and Appeal No. 2291 of 1986 were heard

together and dismissed by a Division Bench of the High Court by a common

judgement on April 21, 1989, which is the subject matter of challenge in

the appeals before us.

Mr. P.P. Rao, learned senior counsel appearing for the Pattedars-

respondents in Civil Appeal 'No. 8580 of 1994 and Mr. Harish N. Salve,

learned senior counsel appearing for the Pattedars-respondents in Civil

Appeal No. 9097 of 1995, raised a preliminary objection as to the

maintainability of the writ petition filed by the Chief Conservator of

Forest as well as the appeal arising therefrom. Article 300 of the

Constitution of India, it is contended, provides that the Government of a

State may sue or be sued in the name of the State; Section 79 of the Code

of Civil Procedure, 1908 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 to that State or the

Collector of the District before the institution of 'the suit; and Rule 1

of Order 27 lays down as to who should sign the pleadings. No individual

officer of the Government under the scheme of the Constitution or the Code

of Civil Procedure can file a suit or initiate any proceeding in the name

of the post he is holding, which is not a juristic person. Ms. K.

Amreswari, learned senior counsel appearing for the appellants, has argued

that before filing the appeal, the Chief Conservator of Forest had obtained

orders and therefore, the writ petition and the appeal should be deemed to

be filed by the Government of Andhra Pradesh; not naming the Government of

Andhra Pradesh in the writ petition as the petitioner or in the appeal as

the appellant is only a procedural matter and, therefore, it is not fatal

to the maintainability of the writ petition and the appeal.

To appreciate the contention of the learned senior counsel, it will be

useful to refer to the relevant provisions of the Constitution of India

[for short, 'the Constitution'] and the Code of Civil Procedure, 1908 [for

short, 'the C.P.C.']. Article 300 of the Constitution falls in Chapter III,

which deals with property, contract, rights liabilities, obligations and

suits. Article 300 reads 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 and 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 Dominion of India is a

party, the Union of India shall be deemed to be substituted for the

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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."

From a perusal of the provision, extracted above, it is evident that the

Government of India as also the Government of a State may sue or be sued by

the name of the Union of India or by the name of the State respectively,

subject, of course, to any provisions which may be made by Act of

Parliament or of Legislature of such State by virtue of powers conferred by

the Constitution.

Section 79 of the C.P.C. deals with suits by or against the Government. It

reads thus:

"79 Suits by or against Government.-In a suit be 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."

A plaint reading of Section 79 shows that in a suit by or against the

Government, the authority to be names 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 the State Government, the State, which is suing or is being

sued.

Order 27 of Rule 1, as mentioned above, deals with suits by or against the

Government or by officers in their official capacity. Rule 1 of Order 27

C.P.C. says 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

by general or special order appoint in that behalf and shall be verified by

any person whom the Government may so appoint.

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 of Order I of 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 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 question that needs to be addressed is, whether the Chief Conservator

of Forest as the petitioner/appellant in the writ petition/appeal 'is a

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mere misdescription for the State of Andhra Pradesh or whether it is a case

of non-joinder of the State of Andhra Pradesh - a necessary party. In a lis

dealing r with the property of a State, there can be no dispute that the

State is the necessary party and should be impleaded as provided in Article

300 of the Constitution and Section 79 of C.P.C., viz., in the name of the

State/Union of India, as the case may be, lest the suit will be bad for

non-joinder of the necessary party. Every post in the hierarchy of the

posts in the Government set-up, from the lowest to the highest, is not

recognised as a juristic person nor can the State be treated as represented

when a suit/proceeding is in the name of such offices/posts or the officers

holding such posts, therefore, in the absence of the State in the array of

parties, the cause will be defeated for non-joinder of a necessary party to

the lis, in any court or Tribunal. We make it clear that this a principle

does not apply to a case where an official of the Government acts as a

statutory authority and sues or pursues further proceeding in its name

because in that event, it will not be a suit or proceeding for or on behalf

of a State/Union of India but by the statutory authority as such.

Under the scheme of the Constitution, Article 131 confers original

jurisdiction on the Supreme Court in regard to a dispute between two States

of the Union of India or between one or more States and the Union of India.

It was not contemplated by the framers of the Constitution or the C.P.C.

that two departments of a State or the Union of India will fight a

litigation in a court of law. It is neither appropriate nor permissible for

two departments of a State or the Union of India to fight litigation in a

court of law. Indeed, such a course cannot but be detrimental to the public

interest as it also entails avoidable wastage of public money and time.

Various departments of the Government are its limbs and, therefore, they

must act in coordination and not in confrontation. Filing of a writ

petition by one department against the other by invoking the extraordinary

jurisdiction of the High Court is not only against the propriety and polity

as it smacks of indiscipline but is also contrary to the basic concept of

taw which requires that for suing or being sued, there must be either a

natural or a juristic person. The States/Union of India must evolve a

mechanism to set at rest all inter-departmental controversies at the level

of the Government and such matters should not be carried to a court of law

for resolution of the controversy. In the case of disputes between public

sector undertakings and Union of India, this Court in Oil and Natural Gas

Commission v. Collector of Central Excise, [1992] Suppl. 2 SCC 432 called

upon the Cabinet Secretary to handle such matters. In Oil and Natural Gas

Commission and Anr. v. Collector of Central Excise, (1995) Suppl. 4 SCC

541, this Court directed the Central Government to set up a Committee

consisting of representatives from the Ministry of Industry, the Bureau of

Public Enterprises and the Ministry of Law, to monitor disputes between

Ministry and Ministry of the Government of India, Ministry and public

sector undertakings of the Government of India and public sector

undertakings in between themselves, to ensure that no litigation comes to

court or to a Tribunal without the matter having been first examined by the

Committee and its clearance for litigation. The Government may include a

representative of the Ministry concerned in a specific case and one from

the Ministry of Finance in the Committee. Senior officers only should be

nominated so that the Committee would function with status, control and

discipline.

The facts of this appeal, noticed above, make out a strong case that there

is a felt need of setting up of similar committees by the State Governments

also to resolve the controversy arising between various departments of the

State or the State and any of its undertakings. It would be appropriate for

the State Governments to set up a Committee consisting of the Chief

Secretary of the State, the Secretaries of the concerned departments, the

Secretary of Law and where financial commitments are involved, the

Secretary of Finance. The decision taken by such a committee shall be

binding on all the departments concerned and shall be the stand of the

Government.

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Now, reverting to the facts of the case on hand, we are of the view that

after the said statutory order of the Commissioner of Survey, Settlement

and Land Record, the matter should have rested there. We have, therefore,

no hesitation in coming to the conclusion that it was not only

inappropriate but also illegal for the Chief Conservator of Forest, though

he might have done so in all good faith, to have questioned the order of

the Commissioner of Survey, Settlement and Land Record before the High

Court of Andhra Pradesh in Writ Petition (C) No. 3414 of 1982. The Chief

Conservator of Forests as the petitioner can neither be treated as the

State of Andhra Pradesh nor can it be a case of misdescription of the State

of Andhra Pradesh. The fact is that the State of Andhra Pradesh was not the

petitioner. Therefore, the writ petition was not maintainable in law. The

High Court, had it deemed fit so to do, would have added the State of

Andhra Pradesh as a party; however, it proceeded, in our view erroneously,

as if the State of Andhra Pradesh was the petitioner which, as a matter of

fact, was not the case and could not have been treated as such. As the writ

petition itself was not maintainable, it follows as a corollary that the

appeal by the Chief Conservator of Forests is also not maintainable. We are

unable to accept the contention of Ms. Amreswari that merely because the

concerned officer had obtained the permission of the Government to file an

appeal, which is not placed before us, the writ petition and the appeal

should be treated as an appeal by the Government of Andhra Pradesh. The

permission granted to the concerned authority might be a permission to file

an appeal which cannot reasonably be construed as authorisation to file the

appeal in his own name, contrary to law. It could only be a permission to

file the appeal in the name of the State of Andhra Pradesh in accordance

with the provisions of the Constitution and the C.P.C. We may also record

that in spite of the Pattedars taking objection to that effect at the

earliest, no steps were taken to substitute or implead the State of Andhra

Pradesh in the writ petition in the High Court or in the appeal in this

Court.

Now, we shall deal with Civil Appeal No. 9097 of 1995, which arises out of

the suit filed by the respondents herein. The respondents-plaintiff claimed

in the suit that the land measuring 748.24 acres out of Survey No. 11 of

Asadpur village and land measuring 45.20 acres out of Survey No. 168 of

Malachintapalli village in Kollapur Taluk, Mahboobnagar District be

declared as the patta lands of the plaintiffs and they be awarded

compensation for the said lands, which was submerged in the Srisailam

Project. The said lands were claimed to be ancestral patta lands and

constituted private Home-Farm land of Plaintiff No. and his father and were

being enjoyed as grazing land for their cattle and for cattle breeding

farm. The plaintiffs had been paying land revenue in respect of those lands

since the abolition of Jagir in 1949. The appellants denied that the suit

land was patta land and home-farm land of the pattedars. It was pleaded

that they were forest lands of the State. To establish their claim, the

Pattedars produced two witnesses. The first witness was one of the

Pattedars and the second was the Tehsildar of the Jagir Jatprole for the

period November, 1937 to September, 1949, They also filed supplementary

setwar, Exhibit A-l. During the period 1954 to 1958, permission was granted

to the Pattedars by the Government for cutting forest wood; permission

letters were filed as Exhibits A-2 to A-9 These documents show the exercise

of right as owner over the suit lands. Exhibit A-10 was filed to prove that

in the village map, the suit lands were shown as patta lands. In support of

the plea for payment of the land revenue after the abolition of Jagir from

1951 to 1974, Exhibits A- l1 to A-26 were filed. Those receipts related to

Asadpur village. Exhibits A-27 to A-44 are receipts for payment of land

revenue in respect of the land in Malachintapalli village. To prove that

prior to the abolition of Jagirs, the suit lands were under the control of

the last Jagirdar, Exhibits A-46 to A-50 were filed which relate to the

period 1312 Fasli to 1328 Fasli and show the expenditure incurred by the

last Jagirdar in respect of the suit lands. The pahani patrika for the

period 1972-1973 and 1983-1984 were also filed as Exhibit A-53 to A-55 but

they may not be really relevant because they relate to the period after the

dispute had arisen between the parties. As against its evidence not an iota

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of evidence was placed on record by the Government to establish that the

lands were taken over at the time of abolition of the Jagirs or that they

form part of the forest area and/or otherwise vested in the Government. The

trial court as well as the Division Bench of the High Court believed the

oral and documentary evidence to decree the suit of the pattedars for

declaration of title and for rendition of accounts. However, the relief of

compensation was declined.

Mr. Salve has heavily relied upon the presumption in Section 110 of the

Evidence Act to support the judgment and order under challenge. He submits

that in view of the long uninterrupted possession of the pattedars title to

the land in their favour has to be presumed and it would be for the

appellant-State to prove that they are not the owners of the land. Ms.

Amreswari has contended that, on the facts, the presumption is not

attracted.

Section 110 of the Evidence Act reads thus:

"110. Burden of proof as to ownership.-When the question is whether any

person is owner of anything of which he is shown to be in possession, the

burden of proving that he is not the owner is on the person who affirms

that he is not the owner."

It embodies the principle that possession of a property furnishes prima

facie proof of ownership of the possessor and casts burden of proof on the

party who denies his ownership. The presumption, which is rebuttable, is

attracted when the possession is prima facie lawful and when the contesting

party has no title.

This Court in Nair Service Society Limited v. K.C. Alexander and Ors.,

A.I.R. (1968) S.C. 1165 observed,

"the possession may prima facie raise a presumption of title no one can

deny but this presumption can hardly arise when the facts are known, when

the facts disclose no title in either party, possession alone decides."

The pattedars proved their possession of the lands in question from 1312

Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the

lands in question but no proof of conferment of patta on the late Raja and

the facts relating to acquisition of title are not known. The appellant-

State could not prove its title to the lands. On these facts, the

presumption under Section 110 of the Evidence Act applies and the

appellants have to prove that the pattedars are not the owners. The

appellants placed no evidence on record to rebut the presumption.

Consequently, the pattedars, title to the land in question has to be

upheld.

We have gone through the judgement of the trial court as also of the High

Court. We have perused the notification issued under Section 29 of the

Forest Act. It shows that as many as fourteen villages are enumerated

therein. Villages Asadpur and Malachintapalli do not figure in the

notification. Even otherwise also, the notification does not show anything

more than the fact that the Government has formed a protected forest area.

That by itself does hot extinguish the rights of the private owners of the

land nor does it show that the lands in question vest in the State. A plain

reading of the statutory order passed by the Commissioner of Survey,

Settlement and Land Record under Section 166-B of the Land Revenue Act on

December 5, 1981 places the matter beyond doubt mat the suit lands were

patta lands of the Pattedars. For all these reasons, in our view, the High

Court has committed no error in confirming the said order of the

Commissioner of Survey, Settlement and Land Record and the Judgment and

decree of the trial court.

Inasmuch as no cross appeal was filed by the said pattedars-respondents in

regard to the denial of relief of the compensation, the interim order

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passed by this Court on December 1, 1994 directing payment of one-half of

the compensation shall stand vacated.

In the result, the appeals are dismissed with costs.