Porathissery Panchayat Tax Payers Assn. v. Executive Officer
1989-02-23
K.A.NAYAR, PARIPOORNAN
body1989
DigiLaw.ai
Judgment :- 1. Porathissery Panchayat, by virtue of the power conferred on it under S.68 of the Kerala Panchayats Act, 1960 read with R.o of the Kerala Panchayats (Building Tax) Rules, 1963 assessed and determined the yearly tax, payable half yearly by the owners of the buildings in the said Panchayat, for 5 years commencing from 14-1-1988. Any person under R.9 of the said rules can move the executive authority by revision petition to reduce the tax to which he is liable for the forth-coming year on the ground that the annual rental value of the building in respect of which the tax is imposed has decreased since the assessment of the building was last made or revised. Against the order made by the Executive Authority imposing tax an appeal shall lie to the Panchayat in respect of the assessment and imposition of any of the taxes made by the Executive Authority. This is under R.10 of the Taxation and Appeal Rules, 1963. The persons in Porathissery Panchayat who received the bills in respect of the buildings for payment of building tax filed revision petitions. It is stated that the petitioners had obtained minor reductions. Not satisfied with such reductions, many of the owners of the buildings in the Panchayat would like to file appeals. But as the individuals are not in a position to file appeals the building owners of the Porathissery Panchayat decided to form an Association by name Porathissery Panchayat Tax Payer's Association, to carry out agitation against the enhancement of building tax as could be seen from Ext. P1. In the original petition it is stated that the owners of the buildings in the said Panchayat organised under the Chairmanship of one Narayana Menon to fight against the Panchayat to see that the building tax imposed is withdrawn. It is stated in Ext.P1 that the General Convenor is Sri. V.V.Kunhunni and the Treasurer is Adiyattiparambil Kochu Devassy. Thereafter it would appear that as part of their agitation one U.P. Devassy styling himself as a Secretary, Porathissery Panchayat Tax Payer's Association, Karuvannur, filed O.P.No.613/ 89 which was dismissed by a learned single judge holding that "the building tax assessment made by the first respondent is challenged by the petitioner on various grounds. The petitioner has an efficacious alternative remedy under the statute.
The petitioner has an efficacious alternative remedy under the statute. When such a remedy is available no writ can be entertained before the statutory remedy is exhausted. The original petition is dismissed." 2. It is against the said judgment that the above writ appeal is filed by Porathissery Panchayat Tax Payer's Association represented by the Secretary U.P. Devassy. 3. We heard counsel for the appellant. The first prayer in the original petition is to "issue a writ of certiorari or other appropriate writ or order or direction setting aside the assessment of building tax from 1-4-1988 of 2nd respondent." The second prayer is to "issue a writ of mandamus or other appropriate writ or order or direction directing the Ist respondent to assess building tax afresh on the basis of rental value of the building as stated in S.68." The prayers are very vague. The entire assessment made by the Panchayat is sought to be quashed in the Writ Petition. As stated already, against the assessment made by the Panchayat, the persons have already filed revision petitions and got some relief. There are efficacious alternative remedies provided under the Act and Rules by way of revision and appeals and without exhausting the statutory remedies it is not open to the petitioner to file the writ petition. In that view of the matter we hold that the learned single judge rightly refused jurisdiction and dismissed the writ petition. 4. Even though in the original petition, the petitioner is U.P. Devassy, in the Writ Appeal, the appellant is mentioned as Tax Payer's Association represented by its Secretary. In the Writ Appeal, the appellant is styled as Porathissery Panchayat Tax Payer's Association. Ist is an unincorporated body. What are the rules and who are the members of the association are all matters not disclosed in that petition. Ext.P1 only says that an association to fight against the Panchayat to see that the assessments are withdrawn has been formed. There is no authorisation by the Association to file any writ petition. Counsel for the petitioner referred to us the decision in Mathew v. Edathua Panchayat reported in 1988(2) K.L.T. 329.
Ext.P1 only says that an association to fight against the Panchayat to see that the assessments are withdrawn has been formed. There is no authorisation by the Association to file any writ petition. Counsel for the petitioner referred to us the decision in Mathew v. Edathua Panchayat reported in 1988(2) K.L.T. 329. The said writ petition filed by the Secretary of the Tax Payer's Association challenging the levy of profession tax when sought to be justified as a public interest litigation was dismissed by Kochu Thommen J., as he then was holding "But this petition is not concerned with any matter of public interest, but of individual interests of the assessees who happen to be members of the association. Each assessee is entitled to approach this Court under Art.226 of the Constitution of India. But he must himself do so, or by a duly authorised power of attorney holder, which the petitioner admittedly is not, and pay the requisite court fee which admittedly has not been paid. It is nowhere stated in this petition that the Secretary of the association is himself an assessee. The petitioner is therefore not shown to be an aggrieved person. It His Lordship thereafter held that the petitioner has no locus standi to challenge the impugned orders. We agree. In this case it is not one order that is challenged; all the orders passed against all the owners of the building are sought to be quashed. Such a petition cannot be justified under any public interest litigation. In Bandhua Mukti Morcha v. Union of India (A.I.R.1984 SC.802 at 838), his Lordship Justice R.S.Pathak, as he then was, observed that in the public interest litigation "the Court enjoys a degree of flexibility unknown to the trial of traditional private law litigation. But I think it necessary to emphasise that whatever the procedure adopted by the Court it must be procedure known to judicial tenets and characteristic of a judicial proceeding Legal jurisprudence has in its historical development identified certain fundamental principles which form the essential constituents of judicial procedure.
But I think it necessary to emphasise that whatever the procedure adopted by the Court it must be procedure known to judicial tenets and characteristic of a judicial proceeding Legal jurisprudence has in its historical development identified certain fundamental principles which form the essential constituents of judicial procedure. They are employed in every judicial proceeding, and constitute the basic infrastructure along whose channels flows the power of the Court in the process of adjudication." By expanding the principle of locus standi third parties were permitted to approach the court when there are physical restraint such as in habeas corpus cases or when socio economic factors are involved, and when volunteer representatives are allowed to approach the court on behalf of the poor and oppressed. (See Gobindram v. Union of India- AIR. 1981 SC.928 (Bhagalpur blinded prisoners) and in Olga Tellis v. Bombay Pavement Dwellers)). There are also cases where no traditional individual rights existed to be vindicated but rights diffused among the public generally are to be vindicated when under the principle of citizen standing, the petition was entertained. These are cases relating to residuary power to Transfer of Judges in S.P.Gupta & others v. President of India & others -1982 SC. 149; the question as to whether foreigners should be allowed to adopt Indian Children dealt with in Lakshmi Kant Pandey v..Union of India - AIR 1984 SC. 469, the environmental impact of limestone quarrying in the Mussourie Hills, as in Rural Litigation and Entitlement Kendra, Dehra Dun v. State of U.P. - AIR 1985 SC. 652, and the leak of chlorine gas from a chemical plant as in M.C. Metha v. Union of India - AIR 1987 SC.965. But in no case the inhabitants of any Panchayat or locality were permitted to challenge the levy of individual assessment of tax through an unincorporated voluntary association formed by them. The appellant's counsel also referred to the Full Bench decision in Umesh Chand v. Krishi Utpadan Mandi Samiti - AIR 1984 Allahabad 46 which only states "An association of persons, registered or unregistered can file a petition under Art.226 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 a way-farer or a busy body ie. it has a special interest in the subject matter; (3) Where the rules or regulations of the association specifically authorise it to take legal proceedings 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 Art.226 for the enforcement or protection of the rights of its members, as distinguished from the enforcement of its own rights." In this case all the individual assessments to building tax on the members are challenged. The law relating to locus standi, payment of court fee etc. cannot be ignored by the petitioner in challenging the individual assessment orders. The larger question whether an unincorporated association of persons can file a writ petition also arises. When a number of individuals are affected by an official act, they can, ordinarily bring a legal proceeding to challenge that only if all such persons join in the proceedings by name, except where the law confers upon them, a legal personality as a collective body such as an association which is incorporated by statute or formed under a statute. Apart from statutory exceptions, unincorporated associations cannot sue or be sued in their own name and only the members of such society jointly can bring a legal proceedings. Petitioner has not relied upon any statutory exception. The Writ Appeal is without merit and is dismissed.