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2021 DIGILAW 809 (KER)

Association of LPG Distributors in Kerala, represented by its Secretary, Mr. Eldho Philip, S/o. Philip v. Indian Oil Corporation, Rep. by the Chief General Manager (LPG - Sales)

2021-09-10

P.B.SURESH KUMAR

body2021
ORDER : Petitioner, though styled as an association in the writ petition, is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (the Act). The members of the petitioner society are distributors of Liquefied Petroleum Gas in the State and they seek in the writ petition, for the benefit of its members, directions to the respondents to implement Ext.P1 guidelines formulated by the oil marketing companies. 2. The registry insisted the petitioner to produce a list of its members and remit court fee for all of them treating the writ petition as one instituted by the members jointly. The counsel for the petitioner took exception to the said stand of the registry pointing out that since no relief is sought in the writ petition individually for any of the members of the petitioner, the writ petition cannot be treated as one instituted jointly by the members of the petitioner. 3. In the light of the aforesaid stand of the counsel for the petitioner, the registry placed the matter before the court for an adjudication as to the sustainability of the stand taken by the counsel for the petitioner to the defect noted by the registry. 4. The learned counsel for the petitioner reiterated the stand aforesaid, viz, that since no relief is sought in the writ petition individually for any of the members of the petitioner, the writ petition cannot be treated as one instituted jointly by the members of the petitioner. In other words, according to the learned counsel, when a writ petition is instituted by an association of persons for the common benefit of its members, court fee shall not be insisted to be paid for all the members of the association. 5. Article 11 (i) (iii) of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959, the court fee payable on writ petitions is Rs.100/- per petitioner. Rule 147A of the Rules of the High Court of Kerala enables more persons than one to join in one writ petition as petitioners in whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, whether jointly, severally or in the alternative, where, if such persons present separate writ petitions, any common question of law or fact would arise. Rule 147A, however, clarifies that court fee shall be paid for such writ petitions for each persons joining as petitioner therein, as if each of them had filed a separate writ petition. 6. In Kerala Electric Trades Association, Kochi and Others v. State of Kerala and Another, 2010 (1) KHC 248 , a learned Single Judge of this court expressed the view that a writ petition instituted by an association for the common benefit of its members is liable to be treated as one instituted jointly by all its members and court fee is therefore liable to be levied on the same for all its members. Referring to the decision in Kerala Electric Trades Association, in Maradu Market Traders' Association v. State of Kerala and Others, 2018 (3) KHC 530 , a Division Bench of this court, placing reliance on Rule 147A of the Rules of the High Court of Kerala, treated a writ petition instituted by an unregistered association of persons claiming reliefs individually for its members as one instituted by them jointly, and directed the petitioner to remit court fee for all the members of the association. 7. It appears that in the light of the order passed by this court in Maradu Market Traders' Association, in terms of the common order passed in W.P.(C) Nos.8757 of 2018 and 8983 of 2018, a learned Single Judge of this court directed the registry that whenever a writ petition is filed by any association seeking relief on behalf of individual members of such association, the writ petitioner shall be insisted to produce a list of the members of the association on whose behalf such reliefs are sought. It was also directed in the said order that such writ petitions shall not be numbered without ensuring that court fee is paid in respect of each of the individual members of the association. 8. It is seen that it is in the light of the order passed by the Division bench in Maradu Market Traders' Association and the order passed by the learned Single Judge in W.P.(C) Nos.8757 of 2018 and 8983 of 2018, that the registry has refused to number the writ petition. 9. As noted, the petitioner in the instant case is a society registered under the Act. 9. As noted, the petitioner in the instant case is a society registered under the Act. A society registered under the Act being a legal entity apart from the members constituting it, it can certainly maintain a writ petition in its name [See Parayakattu Nalukulangara Devaswom v. Padmanabhan Harshas and others, 1983 KHC 178]. Further, Section 9 of the Act specifically provides that every society may sue or be sued in the name of the President, Chairman, Principal, Secretary or Trustee as shall be determined by the Rules and Regulations of the Society and in default of such determinations, in the name of such person as shall be appointed by the governing body for the occasion. The question that arises for consideration, however, is whether the registry is justified in insisting the petitioner in such a writ petition to produce a list of its members and remit court fee for all of them. In the light of Section 9 of the Act, since a writ petition instituted by a society registered under the Act for the benefit of its members cannot be treated as a writ petition instituted by its members jointly, according to me, the petitioner cannot be insisted to remit court fee for all its members. I take this view also for the reason that if the legislature had intended to levy court fee on all members of an association registered under the Act in a matter like this, it would have certainly made a provision for the same in the relevant statute. Since there is no such provision in the Kerala Court Fees and Suits Valuation Act, 1959, according to me, the court cannot strain the language in the statute to hold a subject liable to fee, for it is trite that the benefit of such ambiguities should certainly go in favour of the party. 10. It is seen that though the petitioner in Kerala Electric Trades Association was also a society registered under the Act, a contrary view is expressed without taking note of the said fact and the provisions of the Act. 10. It is seen that though the petitioner in Kerala Electric Trades Association was also a society registered under the Act, a contrary view is expressed without taking note of the said fact and the provisions of the Act. In so far as the question whether court fee is liable to be levied in a writ petition instituted by a society registered under the Act for the benefit of its members has not been considered in Kerala Electric Trades Association, the order passed in the said case, according to me, cannot be an impediment in taking the view expressed in this order. Coming to the order in Maradu Market Traders' Association, the said case being one instituted by an unregistered association, this court was certainly justified in directing the petitioner to pay court fee for all its members placing reliance on Rule 147A of the Rules of the High Court of Kerala and therefore, the said order also cannot be an impediment in taking the view aforesaid. Identical is the view taken by this court in an unnumbered writ petition corresponding to File No.6191 of 2019 dated 6th February 2019, in terms of which this court overruled the identical objection taken by the registry relying on the order in Maradu Market Traders' Association. The writ petition involved in the said case was of course not a society registered under the Act, but a registered trade union, a legal entity apart from its members. In the result, the objection of the registry is overruled. The registry is directed to number the writ petition and list for admission.