Himachal Pradesh High Court

Kusum Thakur & Others vs . National Highways on 30 September, 2024

Kusum Thakur & others vs. National Highways Authority of India & others.

Civil Suit No. 47 of 2024 Reserved on 28.08.2024

30.09.2024 Present: Mr. T.C. Sharma, Advocate, for the plaintiffs.

Ms. Shreya Chauhan, Advocate, for defendant No.1.

Mr. Lokender Kutlehria, Additional Advocate General for defendant No.2 to 5/State.

The plaintiffs have filed the present suit for

recovery of damages caused to the suit property. They

arrayed National Highway Authority of India as,

defendant No.1, Deputy Commissioner Mandi, District

Mandi, H.P as defendant no. 2, Sub Divisional Officer

(Civil), Sundernagar, District Mandi, H.P as defendant

no. 3, Deputy Superintendent of Police Sundernagar,

District Mandi as defendant no. 4 and Tehsildar,

Sundernagar, District Mandi, H.P. as defendant no. 5.

2. The plaintiffs asserted that defendant No. 1

endangered their house and land by digging a four lane

highway. Plaintiff No. 1 approached the concerned

authorities and apprised the District Administration of

Mandi of the alarming situation that occurred as a result

of the negligent and unlawful deeds of defendant No. 1.

Defendant No. 3 asked defendant No.5 to visit the spot

and submit a report within a week. Defendant No.5 got

the matter investigated through the Patwari and found

plaintiffs' allegations to be correct. He submitted his

report to SDM, Sunder Nagar, (defendant No.3) on

26.10.2023. Defendant no. 3 advised the Project Director

of defendant No.1 to take necessary action and also

apprise him about the action taken in the matter.

Plaintiff No.1 also reported the matter to the Pradhan

Gram Panchayat of the area, DSP Mandi-defendant No.4

and D.C. Mandi, (defendant No.2) with a request to look

into her grievances but no action was taken. Hence, the

suit was filed for the recovery of the damages.

3. It was noticed on 22.08.2024 that the suit was

filed against the public officers without impleading the

State of Himachal Pradesh as a party-defendant as

required under Order 27 Rule 5A of CPC; hence, the

matter was listed for hearing the plaintiffs on the

question of maintainability of the suit.

4. I have heard Mr T.C. Verma, learned counsel for

the plaintiffs, Ms Shreya Chauhan, learned counsel for

defendant No.1 and Mr Lokender Kutlehria, learned

Additional Advocate General for defendants No. 2 to 5.

5. Mr. T.C. Verma, learned counsel for the plaintiffs

has submitted that the plaintiffs have sought urgent

relief because their house is in danger; therefore, the

suit was filed without serving a notice under Section 80

of CPC. The State of Himachal Pradesh is not a necessary

party and the suit is maintainable.

Mr. Lokender Kutleharia, learned Additional

Advocate General defendants No. 2 to 5 submitted that

the suit is not maintainable without impleading the

State of H.P. as a necessary party. Hence, the names of

defendants No.2 to 5 be taken off from the record.

7. Ms. Shreya Chauhan, learned counsel for

defendant No.1 submitted that the dispute is between

plaintiffs and defendants No. 2 to 5 and defendant No.1

has nothing to say in the matter.

8. I have given considerable thought to the

submission made at the bar and have gone through the

records carefully.

9. Order 27 and Rule 5(A) of CPC provides that

when a suit is instituted against the public officer for

damages and other relief in respect of any act alleged to

be done by them in their official capacity, the

Government shall be joined as a party to the suit. It reads

as under:

Government be joined as a party in a suit against a public officer: -- Where suit is

instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to

the suit.

10. r It is apparent from the use of the term

'shall' that the provision is mandatory. It was laid down

by Jammu and Kashmir High Court in M.M. Khajuria v.

Abdul Rashid, 2000 SCC OnLine J&K 14: AIR 2001 J&K 10

that it is mandatory to join the State as a party in a suit

filed against the public officers as per Order 27 Rule 5(A)

of CPC. It was observed at page 15: -

"20.... Section 80, C.P.C. starts with the mandatory

requirement that no suit shall be instituted against the Government or against a public officer in his official capacity, until the expiry of two months next after notice in writing has been served in the manner prescribed in the section. In the plaint, a statement is required to be made that such notice was so delivered or left. In the instant case notice under Section 80, C.P.C. was only given to the petitioner through registered post. In the notice, there is an endorsement that a copy was forwarded to the Chief Secretary for substituted service in place of the petitioner in case the law required so. This express bar could only be dispensed with after seeking the leave of the Court as prescribed under sub-clause (3) of Section 80, C.P.C. The respondent has not impleaded the State of J & K as a party nor

any notice was delivered to the Chief Secretary on behalf of the Government and no leave of the Court

.

had been obtained under sub-clause (3) of Section

80, C.P.C. It is thus established that the impugned decree was passed by violating the express mandatory provisions of Sections 79, 80 as well as

O. 27, R. 5(A), C.P.C. The Apex Court in the case of Prabodh Verma v. State of UP(1984) 4 SCC 251 :

(AIR 1985 SC 167) dismissed the writ petition for non-joinder of necessary parties."

11. A similar view was taken by High Court Andhra

Pradesh in Panchayat Secretary v. Maddela

Manikyamma, 2005 SCC OnLine AP 561: (2005) 3 AP LJ 86:

(2006) 37 AIC 193 : (2005) 6 ALD 19 : (2005) 5 ALT 413

wherein it was observed at page 91:-

"11. As for the third aspect of the matter, it has to be noted that the subject matter of the suit is a road

margin and that the action initiated by the respondent is against the officials of the Gram

Panchayat, the Mandal Revenue Officer and the District Collector. Order XXVII Rule 5A of C.P.C.

mandates that whenever any relief is claimed against public officials, the Government should be made as a party to the suit. Order XXVII Rule 5A C.P.C. reads as under:

"5A. Government to be joined as a party in a suit against a public officer Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the government shall be joined as a party to the suit."

12. The respondent has not chosen either to implead the Gram Panchayat or the Government. The bar contained under Section 6 of the Act as to the claim of relief against the

Government operates axiomatically, in cases, where the Government was a necessary party.

Conversely, the suit becomes bad for the non-

joinder of a necessary party. Either way, the respondent was not entitled to the relief on this account. For the foregoing reasons, the

Second Appeal is allowed and the decree granted by the trial Court and affirmed by the lower appellate Court is set aside."

12. Gauhati High Court also took a similar

view in Commissioner-Cum-Secretary, Department of

Power v. T.C. Syndicate, 2011 SCC OnLine Gau 12: (2011) 3

Gau LR 827 and held at page 843:

"34. Rule 5A of order 27, CPC provides that in a suit instituted against a public officer for

damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a

party to the suit.

35. A combined reading of the statutory provisions prescribed by section 79 and order 27, rules 3 and 5A CPC, makes it abundantly clear

that in suits against the State Government or its officers, for any official act or the "State" is required to be added as a party to the suit. Though section 80, CPC has provided that issuance of notice to "the Secretary to the Government" or "the Collector of the District" in case of claim relief against the Government is sufficient compliance, the provisions prescribed by section 79 and order 27 as aforesaid, make it mandatory that the concerned State should be added as a defendant.

36. In the present cases before us, the plaintiffs have not added 'the State of Arunachal Pradesh' as a defendant. Though the Commissioner-cum- Secretary, Department of Power, Government of

Arunachal Pradesh, Itanagar, was added as defendant No. 1, there is nothing to find that he

.

was added as a representative of the State

Government. There is no whisper in the plaints show that the claim was made against the State Government and that the State of Arunachal

Pradesh was liable to pay the amount claimed in the suits. In the relief portion of the suit, it was mentioned that the defendants, who were public servants of the Government of Arunachal

Pradesh, were jointly and severally liable for making the payment claimed by the plaintiffs. As provided by rule 5A of order 27, CPC, in a suit against a public officer, for anything done by him

in his official capacity, the Government is

required to be joined as a party to the suit. But in the case of Gopesh Ch. Das (supra) both in the notice as well as in the plaint it was clearly stated that the Government was liable to pay the claim.

In the plaint of the said case, it clearly stated that the defendants entered in their official capacity and as such the State of Assam was liable. That

apart, the written statement was also filed on behalf of the State. As discussed above, no such

statement was made in the case indicating any liability of the Government. Therefore, the

decision in Gopesh Ch. Das (supra) will not help the appellants. Therefore, as the Government, i.e., the State of Arunachal Pradesh has not been joined as a party, the suits are apparently hit by the statutory provisions of section 79 and order 27, rules 3 and 5A of CPC and as such the same are not maintainable in the eye of law."

13. Hon'ble Supreme Court also held in Coal

Mines Provident Fund Commr. v. Ramesh Chandra Jha,

(2012) 2 SCC 67: (2012) 1 SCC (Civ) 528 : (2012) 1 SCC

(Cri) 689 : (2012) 1 SCC (L&S) 324: 2012 SCC OnLine SC 6

that when a suit has been filed against the public

official in the discharge of his official duty, the State

72:

r to has to be impleaded as a party. It was observed at page

"20. We, therefore, have no hesitation in holding that in view of the fact that the Coal Mines Provident Fund Commissioner has been held by this

Court to be a public officer, it was necessary to join the Union of India as a party in the suit in view of the provisions of Order 27 Rule 5-A of the Code of

Civil Procedure. We, accordingly, see no reason to interfere with the judgment and order appealed

against and the appeal filed by the Coal Mines Provident Fund Commissioner is dismissed, though without any order as to costs."

14. Thus, the law is quite clear that when a

suit has been filed against the public official in respect

of any act done by him/her in the discharge of his/her

official duty, the State is required to be impleaded as a

party and in the absence of the State, the suit is not

maintainable.

15. In the present case, plaintiffs had filed

the suit against defendants No. 2 to 5 in their official

capacity as plaintiff No.1 has specifically stated that she

made a complaint against the D.C, Mandi, H.P-