A legal debate on the issue whether more than one
person or unincorporated association of persons can file a writ petition under
Article 226 of the Constitution of India, has resurfaced in view of the recent [1]judicial
fiat of the High Court of Gujarat. The High Court of Gujarat has directed its
registry by a judicial order that the registry should not accept a joint
petition filed by more than one individual. The registry must insist for a
separate short petition at least and the payment of the court fees accordingly.
A large number of one page petitions in compliance of the above said order have
been filed during this period of more than one and a half year by the parties
concerned just as an empty formality. What a waste of time, energy and money!
Order 1 Rule 1 of the Civil Procedure CPC,
1908 provides that in certain circumstances more than one person can join as
plaintiffs in one suit. It reads as under:
All persons may be joined in one suit as plaintiffs
where-
(a) any right to relief in respect of , or arising out
of , the same act or transaction or series of acts or transactions is alleged
to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common
question of law or fact would arise.
Section 141 of the CPC provides that the
procedure provided in the CPC in regard to suits shall be followed, as far as it
can be made applicable, in all proceedings in any court of civil jurisdiction.
However, the Explanation to the section excludes the applicability of this
section to any proceeding under Article 226 of the Constitution of India. Thus,
the procedural technicalities attached to the suit proceeding of civil nature
provided in the CPC are not attracted in respect of the writ proceeding under
Article 226 of the Constitution of India. This, however, does not mean that
some liberal provisions of the CPC cannot be applied to the writ proceeding.
The object of the explanation is to see that the wide and extraordinary
jurisdiction of the High Court under Article 226 of the Constitution of India
is not fettered or circumscribed by the technicalities attached to the ordinary
civil proceeding. Where the High Court exercises extraordinary jurisdiction
under Article 226 of the Constitution, it aims at securing a very speedy and
efficacious remedy to a person, whose legal or constitutional right has been
infringed. If all the elaborate and technical rules laid down in the CPC are to
be applied to writ proceedings the very object and purpose is likely to be
defeated. The Supreme Court of India in [2]Puransingh
v. State of Punjab
The Hon’ble Supreme Court has relaxed to a
great extent the rule pertaining to locus
standi of a person to file a writ petition during last few decades. The intention
behind this liberal approach is to see that where a large number of persons are
likely to be affected by any action, decision or policy of the State, any one
or more persons who have some legal interest in the issue should be allowed to
maintain the action in the court of law for the benefit of all. Even a totally
stranger is permitted to bring such an issue before the High Court or the
Supreme Court, if he satisfies the court that he is genuinely interested in the
public cause and that the persons affected by the State action are not in a
position to bring action in the court of law due to poverty, ignorance or other
such factors. Therefore it confounds the logic of an ordinary citizen that why
a separate petition is insisted in a case where a large number of persons are
affected by a common order, decision or policy. In this regard the High Court
of Gujarat has very aptly observed that:
“The practice which obtains in England
requires a writ petition to be filed by one petitioner. It may or may not hold good in this country. However, where there
are more than one petitioner having common facts to urge and raising common
questions of law for the decision of the High Court in a writ petition, a
common petition can be filed by them. Unless therefore all the petitioners who
have joined in the writ petition have common facts to urge, common points of
law to argue and common relief to claim, they cannot file a common writ
petition... Except in cases where the vires of a legislation or Rules are
challenged, no joint petition can be
entertained unless all the
petitioners have been , so far as the facts relating to them are
concerned, are similarly situate, have common contentions to argue and common
relief to seek. Where vires of legislation or rules are challenged, indeed
a common petition can be entertained.”
This decision states that where the
validity of any legislation or rule is challenged, a joint petition by more
than one person is indisputably maintainable. But where the issue raised in the
petition is other than the validity of a legislative provision or a rule, a
joint petition can be filed if it satisfies the test set out above viz. if
there is common injury alleged to have been caused by a common order or action
against the background of common facts to be urged by all petitioners.
In a joint petition filed before the
Supreme Court in some of the cases, the Supreme Court rightly brushed aside
such a technical objection. In the case of [4]A.
N. Pathak v. Secretary to the Government, Ministry of Defence a preliminary objection was taken about the
maintainability of the petition. The
Supreme Court observed: “In the counter-affidavit filed by the respondents two
preliminary objections were taken - (1) that the joint petition filed by the
petitioners is not maintainable inasmuch as it involves determination of
different questions of facts based on separate causes of action and (2) xxx
.... Before dealing with the merits of this case we will dispose of the
preliminary objections. We are not impressed with the preliminary objections.
The petitioners have clearly given the details about the dates of appointment,
promotion, etc. The dates do differ. But nothing prevents this Court from moulding
the relief and giving directions to the respondents to reconsider the offending
lists with reference to each of the petitioners in the light of what follows.”
In respect of a petition filed by an unrecognized
association also the Supreme Court did not give any importance to such an
objection. The Court held that:
[5]“A technical point is taken in the
counter-affidavit that the 1st petitioner is an unrecognized association and
that, therefore, the petition to that extent, is not sustainable. It has to be
overruled. Whether the petitioners belong to a recognized union or not, the
fact remains that a large body of persons with a common grievance exists and
they have approached this Court under Art. 32. Our current processual jurisprudence is not of individualistic
Anglo-Indian mould. It is broad-based and people-oriented, and envisions access
to justice through 'class actions', 'public interest litigation', and
'representative proceedings'. Indeed, little Indians in large numbers seeking
remedies in courts through collective proceedings, instead of being driven to
an expensive plurality of litigations, is an affirmation of participative
justice in our democracy. We have no hesitation in holding that the narrow
concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions...”
[6]“Locus standi of third petitioner was
questioned. Petitioner No. 3 is a Society registered under the Societies
Registration Act of 1860... Its members consist of public spirited citizens who
have take up the cause of ventilating legitimate public problems. This Society
received a large number of representations from old pensioners, individually
unable to undertake the journey through labyrinths of legal judicial process,
costly and protracted, and, therefore, approached petitioner No. 3 which espoused
their cause. Objects for which the third petitioner-Society was formed were not
questioned... Third petitioner seeks to enforce rights that may be available to
a large number of old infirm retirees. Therefore, its locus standi is unquestionable.”
On the issue of filing a joint petition
divergent views have been expressed by different high courts. It will not be
out of place to have a bird eye view of these decisions at this stage. In the
case of [7]Mana
Ram v. State of Rajasthan
Rajasthan High Court
“To summarize the position appears to be
that an association of persons, registered or unregistered, can file a petition
under Article 226 of the Constitution for enforcement of the rights of its
members as distinguished from the enforcement of its own rights-
(1) In case members of such an association
are themselves unable to approach the court by reason of poverty, disability or
socially or economically disadvantaged position “little Indians”.
(2) In case of a public injury leading to
public interest litigation provided the association has some concern deeper
than that of way-farer or a busybody i.e. it has special interest in the
subject matter.
(3) Where the rules or regulations of the
association specifically authorizes it to take legal proceeding on behalf of
its members, so that any order passed by the court in such proceedings will be
binding on the members.
In other cases an association whether
registered or unregistered cannot maintain a petition under Article 226 for the
enforcement or protection of the rights of its members, as distinguished from
the enforcement of its own right... a single writ petition under Article 226 of
the Constitution by more than one petitioners, not connected with each other as
partners or any other legally subsisting jural relationship, is maintainable
where the right to relief arises from the same act or transaction and there is
a common question of law or fact or where though the right of a claim does not
arise from the same act or transaction, the petitioners are jointly interested
in the causes of action.”
Some of the [13]courts
have examined the issue of maintainability of a joint petition from the angle
of the loss of revenue in the form of court fees. With due deference, the
writer of this article does not agree with the views of these courts. The
joinder of more than one plaintiff in a single suit is an issue dealt with in
the CPC. The joinder of more than one petitioner in a single petition is to be dealt
with by drawing analogy from the provisions of the CPC. The payment of court
fees is a subject governed by the provisions of the Court Fees Acts of the
respective State. The provisions of the Court Fess act would reveal that the
payment of court fees has nothing to do with number of the plaintiffs or
petitioners. Therefore, issue of payment of court fees should not be mixed with
the issue of filing a joint petition. The issue of payment of court fees
largely depends on the relief claimed in the plaint or petition and not on the
number of plaintiff or petitioners. If the party to the proceeding has claimed
different and unconnected relief in the plaint or petition, the issue deserves
to be resolved as per S.18 of the Court Fees Act(Gujarat Act) or similar
provision of the Acts of other States. If the law permits more than one person
to join in a single suit or other proceedings, it will be improper to bring the
issue of payment of court fees on the ground that more than one person are
likely to be benefited by the judgment. The Full Bench of Allahabad High Court
has made very pertinent observations on the issue of the payment of court fees
where a joint petition has been filed. The Court held :
[14]“... Where a single writ petition by an
association or more than one person is maintainable as mentioned above, only
one set of court fees would be payable. The
levy of court fees does not depend on the number of persons who have joined in
the petition. But where a single
petition is not validly maintainable, but nonetheless several persons join in
it, then the principle laid down in Mota Singh’s case will apply; namely each
petitioner will have to pay court fees separately as if he had filed a separate
writ petition. In such cases the writ petition may not be, in the
discretion of the court, be dismissed outright. The defect of misjoinder of
petitioners can be cured by requiring each petitioner to pay separate court
fees.” In the case of Mota Singh the Supreme Court held that: [15]“...where
every owner of a truck plying his truck for transport of goods has a liability
to pay tax impugned in the petition, each one has his own independent cause of
action. A firm as understood under the Partnership Act or a Company as
understood under the Indian Companies Act, if it is entitled in law to commence
action either in the firm name or in the Company's name, can do so by filing a
petition for the benefit of the company or the partnership and in such a case
court fee would be payable depending upon the legal status of the petitioner.
But it is too much to expect that different truck owners having no relation
with each other either as partners or any other legally subsisting jural
relationship of association of persons would be liable to pay only one set of
court-fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising
out of the liability to pay tax individually and the petition of each one would
be a separate and independent petition and each such person would be liable
to pay legally payable court-fee on his petition... We are, therefore, of the
opinion that the office should scrutinize afresh each one of the cases referred
to in the office report and ascertain whether requisite court fee has been paid
in each of them. In ascertaining this fact, the office should ascertain whether
there are number of petitioners who are combined in one petition; the position
of each qua the co-petitioners, and the
relief claimed and determine the liability of each such petitioner to pay
court-fee for the relief sought by him. If on such ascertainment and
determination court-fee is shown to be payable by different petitioners who
have joined together in one petition learned advocates appearing for them
should be called upon to make good the deficit court-fee...”
In other words only in two types of cases separate
court fees can be directed to be assessed and charged i.e. (i) Where more than
one person join in a single proceeding solely with a view to evade the payment
of court fees by ingenious drafting of the plaint or the petition and (ii)
Where totally unconnected persons having no common facts, issues or questions
of law join in a single proceeding claiming similar but not the same relief or
different relief.
[16]“ Even though the provisions of the CPC of
Civil Procedure ( in this case Order 1 Rule 1) are not applicable to the
petitions under Article 226 of the Constitution, the principles under lying
them are applicable... it is open to the court to direct separate cases to be
registered where a number of persons have been joined as petitioners claiming
similar reliefs against a party on the basis of distinct and separate causes of action. In such a case the court
may for the sake of convenience allow the petitioners to prosecute a joint
petition subject to the condition that each of them pays a separate court fees
on the principles underlying S.17 of the Court Fees Act. Separate court fees can be demanded from each of the petitioners only
where it appears to the court that causes of action are distinct and separate...”
[17]“What has to be determined in assessing the
liability to pay court fee is as to whether the relief claimed by each of the
petitioner is based on a distinct cause of action, whether there is any jural
relationship between one petitioner and the others and what relief claimed by
each one of them is...the petitioners have no relation with each other either
as partners or any other legally subsisting jural relationship. No common
question of law or fact arises for determination to grant them relief. The
right to relief does not arise from same act or transaction or a series of acts
or transactions. We have therefore no hesitation in holding that if each of the
petitioners in the above case could be allowed to join in filing a single
petition, each one of them must pay a separate court fees.”
From the foregoing discussion one can deduce following
conclusions-
Conclusions:
(i) There is no
law that prohibits the filing of a joint writ petition by more than one person.
Provided the facts having direct
nexus with the controversy raised in the proceeding are common to all, the
relief prayed in the proceeding is same and all the petitioners must belong to
the common class of persons affected by a common executive, legislative or
policy decision impugned in the proceeding.
(ii) Since there is no legal embargo on more than one
person filing a joint writ petition, the common sense and logic lead us to the
corollary that no valid objection could be raised with regard to
un-incorporated association filing a writ petition for the benefit of its
members. Provided the association was
authorized by the resolution of its members to file the petition and the
Rules/By-Laws of the association binds each member with the legal consequences
of the act of the association. In short
for the sake of convenience the association may be conferred a limited legal
status to institute legal proceeding as it is permitted in respect of partnership
firms under Order 30 of the CPC.
(iii) The issue of payment of court fees has nothing
to do with the number of persons legally entitled to join the legal action and
filing a joint action. The said issue rather depends on the relief sought for
in the legal proceeding. If the persons legally not entitled to unite in a
single proceeding decide to join the single proceeding, not only separate court
fees would follow but each one would be required to file a separate pleading
also.
[1] Order dated 1-3-2005 in SCA No 17136 of
2004 and the clarificatory order dated 15-6-2005 in SCA No. 10472 of 2005
[4] A. N. Pathak v.
Secretary to the Government, Ministry of Defence AIR 1987 SC 716 (para 6,7), for the contrary view please see
P Radhakrishna Naidu v. Govt. of AP AIR 1977 SC 854 (para 14)
[12] Umesh Chand v.
State AIR 1984 All 46 (FB) (para 28,34,36), Management of K.S.R.T.C. v. KSRTC
Staff and Workers' Federation AIR 1999 SC 1059 :1999 AIR SCW 697 (para 10) For
the contrary view please see Sand Carriers Owners Union v. Board of Trustees
for the Port of Calcutta AIR 1990 Cal 176 (para13,14), Mahinder Kumar Gupta v.
UOI (1995) 1 SCC 85 (para6)
[13] Chandra Kishore v.
State of UP AIR
A good article
ReplyDeleteRasmi Ranjan Jena
Advocate
Orissa High Court