Hon'ble Ritu Raj Awasthi, J.: -

This writ petition regarding the Ujariayon Housing Scheme, Part IV challenges sections 2, 3(aa), 17, 17(1) and 17(4) of the U.P. Urban Planning and Development Act, 1973 of being ultra vires the Constitution. The petitioner also prays for the following reliefs:-

“(b) a suitable writ, order or direction commanding opposite party no. 2 to repeal or deem repealed the U.P. Urban Planning and Development Act, 1973 in full or in part to bring it in conformity with the Constitution 74th Amendment Act by reviving the suspended provisions of the U.P. Municipal Corporation Act, 1959.

(c) a suitable writ, order or direction quashing gazette notification issued under Section 4(1) of the Act dated 19.04.2010 and declaration under Section 6 of the Act dated 04.01.2011 contained in Annexure No. 3 and 4 respectively.

(d) a suitable writ, order or direction quashing the allotments made by opp.party no. 5 even before completion of acquisition proceedings for “the scheme” after summoning the original from opposite parties no. 2 to 5.

(e) a suitable writ, order or direction commanding the opposite parties no. 2 to 5 not to take any further action on the basis of impugned Annexure Nos. 3 & 4.

(f) a suitable writ, order or direction commanding the opposite parties 2 to 5 not to interfere with the possession of the petitioner in respect of the land in dispute”.

2. On the hearing of the writ petition, preliminary objection was raised by the Additional Chief Standing Counsel for the State of U.P. Sri Krishna Chandra with regard to the maintainability of the present petition on the ground that the petitioners have not impleaded the Government through the Secretary of the Department/Ministry concerned of the appropriate Governments, and therefore, the petition is liable to be dismissed unless the petitioners make necessary amendment in the petition and implead opposite party nos. 1 and 2, namely, the Union of India and the State of U.P. through the concerned Secretaries.

3. The petitioners, in the course of arguments moved an application for amendment, by means of which they impleaded the Principal Secretary, Avas Evam Shahri Niyojan, Anubhag-3, Civil Secretariat, Lucknow as opposite party no. 9 and Special Secretary, Avas Evam Shahri Niyojan, Anubhag-3 Civil Secretariat, Lucknow as opposite party no. 10, which stands allowed. However, with the consent of the parties counsel, we proceed to decide the preliminary question of maintainability of the petition on the ground of non-joinder/mis-joinder of parties by not impleading the appropriate government through its limb.

4. The arguments of learned counsel of the petitioners Sri Qamar Ahmed in response to the aforesaid objection in nut-shell is that there is no requirement under law, much less the Constitution to implead Union of India or the State through the Secretary of the Ministry/Department concerned. He submitted that the opposite party nos. 1 and 2 have been impleaded in accordance with the constitutional provision, precisely Article 300(1) which specifically provides for the manner in which the Government may sue or be sued in any suit or proceedings brought by or against the Government. Consequently, his further submission remained that this Court cannot issue any direction for impleading the opposite party nos. 1 and 2 through the Secretary of the concerned Ministry/Department of the appropriate Government. In the alternative, he also submitted that the executive powers of the State are concentrated in the Council of Ministers by virtue of Article 75(3) read with Article 74 in the case of the Central Government and also correspondingly Article 164(2) read with Article 162 in the case of State Government and therefore, there lies no infirmity in suing the appropriate Government by its name. To buttress his alternative argument, he placed reliance on the decisions of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, Bijoya Lakshmi Cotton Mill

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