Research › Search › Judgment

Bombay High Court · body

2016 DIGILAW 1862 (BOM)

Santosh s/o Narayan Gaikwad v. Registrar of the Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur

2016-10-03

B.R.GAVAI, R.K.DESHPANDE, V.M.DESHPANDE

body2016
JUDGMENT : 1. The Division Bench of this Court, by an order dated 12-9-2011, has referred the following question for determination by the Larger Bench : “Whether a Cooperative Society filing a petition under Article 226 of the Constitution of India before this Court for redressal of common grievance of its members, is required to pay separate court fee qua each such member.” In the office notice dated 9.12.2010, a reference is made to an order dated 6-9-2010 passed in Writ Petition No.825 of 2006 along with the connected matters, and it is notified that whenever a petition filed by the Association claiming reliefs in favour of its members, the petitioner/s should furnish the names of the members of the petitioner-Association or any registered or unregistered organization in the petition and to pay court fees qua each member of the Association. 2. In Writ Petition No.825 of 2006 along with the connected matters, the Division of this Court issued a direction on 6-9-2010 making a reference to the order dated 29-6-1976 passed in Special Civil Application No.1259 of 1975 (Govindrao Atmaramji Warjukar and another v. The State of Maharashtra, through the Secretary, Agriculture & Cooperative Department, Sachivalaya, Bombay-32) and the judgment dated 12-8-1976 delivered in Civil Revision Application No.343 of 1976 in Special Civil Application No.3337 of 1976 (Mohd. Usman Abdul Jabbar v. Union of India, through the Secretary of Ministry of Trade and Commerce, Govt. of India, New Delhi, and others) (both unreported) holding that whenever there is a petition by the Association or any registered or unregistered organization claiming reliefs in favour of its members, the petitioner/s should pay court fees qua each member of the Association. The petitioners in the said petition were directed to disclose the names of the members of the petitioner-Association and to pay court fees qua each member of the Association. 3. In the referal order, the Division Bench has observed that Special Civil Application No.1259 of 1975 was filed by the two independent/unconnected citizens, both having licence as money lenders and doing the business accordingly as per the provisions of the Bombay Money Lenders Act, 1946, and it was not a petition filed by any artificial person. 3. In the referal order, the Division Bench has observed that Special Civil Application No.1259 of 1975 was filed by the two independent/unconnected citizens, both having licence as money lenders and doing the business accordingly as per the provisions of the Bombay Money Lenders Act, 1946, and it was not a petition filed by any artificial person. It has further observed that in Special Civil Application No.3337 of 1976, the petitioners had already paid separate court fees of Rs.20/-per head, claiming violation of Articles 14 and 16 of the Constitution of India, and it has found that the computation of Rs.20/-per head was proper. The order further holds that in both the matters, the question as to whether separate court fee was required to be paid by each of the petitioners, was not involved. 4. So far as Writ Petition No.825 of 2006 and other connected matters in which a direction was given on 6-9-2010, the referal order says that though it is an interlocutory order, its impact is final and/or irreversible, and the referal Bench was not in a position to accept the contention that the said order does not take any particular view of the controversy. The referal Bench has expressed that it finds itself unable to take a view to the contrary, and hence the question formulated above has been referred for the decision by the Larger Bench. 5. The referal order is passed in Writ Petition No.3634 of 2011, which is filed by the two individual persons, the petitioner No.1 being a lawyer, and the petitioner No.2 being a businessman, challenging the notice dated 9-12-2010 issued by the Registrar to the extent notifying that whenever a petition filed by the Association or any registered or unregistered organization claiming reliefs in favour of its members, the petitioner-Association or any registered or unregistered organization to pay court fees qua each its member. It is not the petition filed by any Association or registered or unregistered organization, which wanted to espouse the common grievance of its members. It seems from the referal order that the petitioner No.2 had filed Writ Petition No.2813 of 2010 through Amravati Zilla Krishi Sahitya Vikreta Kendra. The referal order says that the said writ petition was dismissed as infructuous, as there was no question of any order which could be executed against the members of that Association. It seems from the referal order that the petitioner No.2 had filed Writ Petition No.2813 of 2010 through Amravati Zilla Krishi Sahitya Vikreta Kendra. The referal order says that the said writ petition was dismissed as infructuous, as there was no question of any order which could be executed against the members of that Association. We find that the question referred to for the decision by the Larger Bench does not arise in Writ Petition No.3634 of 2011 and, therefore, the order of reference was not necessary. 6. Be that as it may, once the referal Bench has observed that such question did not arise for consideration before the Division Bench of this Court in Special Civil Application No.1259 of 1975, Civil Revision Application No.343 of 1976, and Special Civil Application No.3337 of 1976, it was open for the referal Bench to hold that the order dated 6-9-2010 passed by the Division Bench in Writ Petition No.825 of 2006 along with the connected matters does not lay down any ratio flowing from any adjudication, supported by reasons, which can be said to be binding upon the Coordinate Bench. The effect of simple direction given therein could be independently considered in the facts and circumstances of each case. Such simple direction cannot be considered as laying down a straitjacket formula, which has to be followed mechanically in each such case. It will always depend upon the nature of challenges and reliefs claimed in each such petition. 7. In view of above, the matter be placed before the appropriate Division Bench for dealing with the facts and circumstances of the case.