Calcutta High Court
Sand Carrier'S Owner'S Union And Others vs Board Of Trustees For The Port Of ... on 21 April, 1989
Equivalent citations: AIR1990CAL176, 93CWN1095, AIR 1990 CALCUTTA 176, (1989) 93 CAL WN 1095, (1989) 1 CAL HN 474, (1989) 2 CALLJ 201
ORDER
1. This writ application was filed by three different Associations on behalf of its members against the notification No. 443 ublished in the Calcutta Gazette in its Extraordinary issue by Calcutta Port Trust on 10th Mar. 1988 whereby the dock permit fees was enhanced from Rs. 20.40 to Rupees 1,000/- per annum per vehicle. The petitioners claimed to be the associations of the operators of the lorries and traitors operating in Calcutta Port. In this writ application, a preliminary objection was raised as to the maintainability of the writ application at the instance of the petitioners inasmuch as, the petitioners are societies who had filed writ application for the benefit of all its members.
2. With regard to the preliminary objec tion as to the maintainability of the writ application raised by the Respondents Mr. Arun Prokash Sircar learned Advocate -
appearing on behalf of the petitioners con tended that the writ petition was moved by the.
Sand Carrier's Owners' Union represented by Jata Sankar Tewari General Secretary, Kidderpore Lorry Owners' Association re presented by Raj Kishore Singh and Strand Road Lorry Owners' Association represented by Md. Idris, General Secretary of the said Association. It is stated that Kidderpore Lorry Owners' Association is not a registered body. It was submitted by Mr. Sircar that the concept of rights of individual vis-a-vis rights of the association as a collective body has undergone a sea of change and in this con nection, reliance was placed to the observa tion made by Justice Krishna Iyer in the case of Akhil Bharatiya Soshit Karmachari Sangh (Railway) v. Union of India .
"A technical point is taken in the counter-affidavit that petitioner 1 is an unrecognised association and therefore, the petitioner to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised 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 pro-cessut jurisprudence is not of individualistic Anglo-Indian mound. It is broad based and people oriented, and envisions access to justice through 'class action' "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. It must fairly be stated that the learned Attorney-General has taken no objection to a non recognised association maintaining the writ petitions."
It was further submitted that by the impugned action on the Calcutta Port Trust, all members of the petitioners Association have been affected and as such the said Association could represent its members in a representative b'odies to ventilate their common grievance in a proceeding under Art. 226 of the Constitution of India. It was further submitted that in the case of Howrah Wholesale Fish Traders' Association which was a society registered under the West Bengal Societies Registration Act. It was submitted that the right to form association is guaranteed in Art. 19(1)(c) of the Constitution of India.
3. It was further submitted that S. 19 of the West Bengal Societies Registration Act, 1961 provides that every society may sue or may be sued in the name of the President, Secretary or any office bearer authorised by the governing body in this behalf.
4. Mr. Moni Bhusan Sirkar learned Advocate appearing on behalf of the Respondents contended that it is firmly esta-
blished principles that before a party moves writ application, he must have a legal right or a personal right. The writ application is available for the purpose of enforcing such legal right. In this connection, reference was made to the decision of the Supreme Court in the case of Calcutta Gas Company v. State of West Bengal Mr. Moni Bhusan Sirkar also submitted that the writ application under Art. 32 of the Constitution of India was entertained by the Supreme Court in the case of Akhil Bharatiya Soshit Karmachari Sangh (Railway) v. Union of India on concession being made by the learned Attorney General appearing on behalf of the Union of India, When the learned Attorney General did not press the question of maintainability of the petition under Art. 32 of the instance of such Karmachari Sangh. It was also submitted that the judgment passed by this Court on concession cannot have a binding effect and cannot be relied on as a precedent. The writ application can only be filed by person concerned whose legal right has been affected by the action of the respondents. There may be cases where a large number of persons may be affected by a common order and such a composite application is also maintainable whether common order is challenged on any ground. In the instant case, the writ application was filed by three different associations out of which two were registered and one unregistered. The members of the association is unascertained or in other words, not disclosed in the writ application. The writ application can be filed by the persons affected and there may be cases where the writ application is maintainable by any third party as a public interest litigation. Public interest litigation, can be filed to expose the cause of people who are poor and because of their distressed condition who cannot come to the Court and who are not aware of their legal rights. In such cases the person concerned should not have any interest in the matter but he can espouse the cause of the other but the condition is that the persons concerned for whose benefit the writ application is filed, must be specialty and/ or economically backward and that they are not aware of the legal rights.
5. In the instant case, the said association who claimed to be the association of truck owners and lorry owners filed this writ application against the enhancement of dock permit fee in respect of the vehicles operating inside the dock area. By this enhancement the individual truck owners or lorry owners might be affected. In law the association is a different juristic person than that of the individual owner.
6. The question is whether the petitioners have locus standi or standing to move this writ application. The question of locus standi to present petition under Art. 226 has its importance because the High Court may not entertain such petition if presented by an incompetent person. As to the question who may apply under Art. 226 of the Constitution, the Supreme Court observed in the case of Calcutta Gas Co. v. State of West Bengal that:
"The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief as asked for must be one to enforce a legal right. The right that can be enforced should ordinarily be a personal or indiviedual right of the petitioner himself though in case of the writs like habeas corpus or quo-warranto this rule may have to be relaxed or modified."
7. The Supreme Court also observed in the case of State of Orissa v. Madan Gopal that the existence of the right is the foundation of the exercise of jurisdiction under this Article which has been reaffirmed in number of subsequent cases. In the case of Kalyan Singh v. State of U.P. reported in AIR 1962 SC 1183 it was also observed that the right to maintain such a petition postulates a personal right which must be subsisting till the final hearing of the petition. In the case of Maganbhai Ishwar-bhai V. Union of India the Supreme Court observed that such persons only whose rights are directly and substantially invaded or are in imminent danger of being so invaded can approach the Court. In Venkateswara Rao v. Govt. of A.P. the Supreme Court has the occasion to decide as to whether the representative of a committee which was formed to raise subscriptions etc. from a village for the establishment of a primary Health Centre in the Village in pursuance to a decision of the Government could challenge the order cancelling the establishment of the Health Centre at that village. It was held in that case by the Supreme Court that the personal right to invoke the jurisdiction of the court under this Article need not be in respect of a proprietory interest. It can also relate to an interest of a trustee. That apart in exceptional cases, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietory or even fiduciary interest in the subject matter.
8. In England, Lord Denning has been the champion of liberal approach with regard to locus standi to move the writ application. In the series of cases which are known as Balckburn cases. Lord Denning had taken the view that an ordinary individual can move the High Court and he shall be heard if he has a 'sufficient interest'. In the case of R. v. Commr. of Police, ex parte Blackburn (1968) 2 QB 118 writ petition was entertained at the instance of Mr. Blackburn when the Police authorities were not protecting the big gambling clubs of London for violating the law. Similar view was taken in case of R, v. Police Commr, Ex parte Blackburn (1973) QB 241 where writ petition was entertained on the ground of failure of the police to enforce the laws against pornography. In the case of R. Greater London Council, Ex parte Blackburn (1976) I WLR 550, Lord Denning observed that -
"It was suggested that Mr. Blackburn has no sufficient interest to bring these proceedings against the G.L.C. on this point, I would ask : who then can bring proceeding when a public authority is guilty of a misuse of power? Mr. Blackburn is a citizen of London. His wife is a rate payer. He has children who may be harmed by the exhibition of porno-graphic films. If he has no sufficient interest, no other citizen has."
9. In Gouriet reported in (1978) AC 435 however, the House of Lords found Lord Denning "Too bold. Not only too bold, but altogether wrong.". After the decision of the House of Lords some amendments were made in the rule of Supreme Court in England. Amongst other amendments, one which is relevant on this point, was that O. 53 stated that the Court shall not grant leave for judicial review, "unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
10. In this connection, it may be mentioned that in the case of R. v. Inland Revenue Commrs, reported in (1980) 2 All ER 378 the court of appeal (Lord Denning speaking for the majority) upheld the locus standi of an association claiming to represent a body of tax payers who had challenged an agreement of Inland Revenue not to assess and collect taxes from certain workers. According to the majority the association was not a mere busy body but had a sufficient interest to complain about the amnesty. The House of Lords however reversed the judgment in Inland Revenue Commissioner v. National Federation of Self Employed and Small Business Ltd. reported in (1981) 2 All ER 93.
11. The question is whether the certiorari could be sought for by a stranger or not, it was observed in Halsbury's Laws of England, Fourth Edition, Vol-1, page 157 para 162 as follows:--
"Although the order is not of course, it will nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by a member of the public."
12. In R. v. Thames Magistrates' Court, ex parte Greenbaum (1957) 55 LGR 129, Parker J. stated -
"Anybody can apply for it a member of the public who has been inconvenienced, or a particular party or a person who has a particular grievance of his own. If the application is made by what for convenience one may call stranger, remedy is purely dis-
cretionary. Where, however, it is made by a person who has a particular grievance of his own whether as a party or otherwise, this remedy lies ex debito justitiae."
On the question whether a writ of mandamus can be enforced by a stranger or not. The law on this subject has been summed up in the Fourth Ediction of Halsbuiy's Vol. 1 page 132 in para 122 as below :
"(A) As a general rule the mere fact that a person is interested in the performance of duty as a member of a class of persons, all of whom may be regarded as equally interested, but himself having no particular ground for claiming performance, or that who has some ulterior purpose to serve, but no immediate interest on his own or any other persons, behalf, will not be sufficient ground for granting a mandamus. Nevertheless, ratepayers have been entitled to apply for mandamus in circumstances where their personal interest in the performance of the duty in question was not greater than that of others belonging to their sections of the community and other persons have been awarded mandamus by virtue of having a special and substantial interest in the performance of the duty although their interest fell short of what is normal connoted by a legal right to its performance."
13. In this connection, reference may be made with regard to the law regarding standing or locus standi United States of America in the case of office of Communication v. FCC 359 F. 2d 994,1000 N. 8(D.C. Cir. 1966) it was observed that "the question of who has standing to seek review is closely related to the question of who has a right to be heard before the agency. The Courts generally hold that one who has a right to be heard before the agency has standing to seek review and vice versa." Apart from maintainability at fhe instance of the aggrieved party, petition could be entertained in case where statute has conferred such a standing which is called "statutory standing". A statutory provision conferring standing will be given effect even though the person concerned does not have the direct personal interest that would other-
wise be required. In Schwartz's Administrative law at page 456, it was observed that -
"In a suggestive opinion, Justice Douglas bas implied that a statutory standing provision may not go so far as to make for a "case" or "controversy" where none would otherwise exist. According to him, unless one seeking to challenge a governmental act" can show that his individual interest has been unlawfully invaded, there is merely damnum absque injuris and no cause of action on the merits. On that assumption, I fail to see how an appeal statute constitutionally could authorise a person who shows no cause or controversy to call on the courts to review an order of the commission."
In strict logic, it is difficult to rebut the Douglas position on the congressional power to confer standing where none would otherwise exist. The only answer which the Supreme Court has given was expressed in the majority opinon in scripps-Howard Radio v. FCC the case in which the Douglas opinion quoted from was dilivered in dissent. Referring there to the standing conferred by the Communications Act of 1934 to seek review of Governmental action taken under that statute the Scrips-Howard opinion states that the act "did not create new private rights. The purpose of the Act was to protect the public interest in communications." That being the case, those private litigants whom the Communications Act permitted to bring review actions "have standing only as representatives of the public interest".
It was stated by Bernard Schwartz at page 458 that -
"If in the absence of a statute expanding standing, only those with a direct personal interest in the challenged act possess standing, a review acting may not he brought by one who alleged only the interest of a citizen. "To hold that every Tom, Dick and Harry can attack the commission's order would be to render meaningless the standing requirement. Accordig to Frothingham v. Mellon, the same is true of a plaintiff who relies on his interest as a federal taxpayer, alleging that the administrative act which he challenges involves an invalid expenditure of public funds. Frothingham held that a person alleging only the interest of a federal taxpayer did not have the standing necessary to bring a review action.
It was also stated by Bernard Schwartz at page 472 that -
"The next step has been extension of standing to "consumers of the environment". The Supreme Court has emphasized that standing is no longer confined to those who can show economic harm; nor does the fact that many persons share the same injury constitute sufficient reasons for denying standing to any person who has in fact suffered injury. "Aesthetic and environmental well-being, like economic well-being are important ingredients of the quality of life in our society, and the fact that particular environmental interest are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."
It was stated by Bernard Schwartz at page 477 that -
"The class action as a vehicle for securing judicial review has been recognized in cases dealing with challenges to utility rates, actions affecting welfare payments and public housing, and environmental actions. A typical case involved an action by a public benefit corporation against a proposed nuclear detonation on behalf of all persons entitled to life, health, and enjoyment of natural resources in the area concerned. The standing of plaintiff to maintain such a class action was expressly affirmed."
"The limitation imposed on class actions by Eisen v. Carlisle Jacquelin is one of notice. Eisen requires individual notice to be sent to all class members who can be identified through reasonable effort. Those bringing class actions have the burden of sending notices to each member of the class on whose behalf the action is brought, even though there may be millions of class members to be notified."
The limitation imposed on class action in America requiring individual notice is sent to all class members who can be identified through reasonable effort. As it is important not only in question of legal principle but on its practical application. Here in this case, the petitioners who are three associations, two registered and one unregistered, have moved this writ application allegedly to protect the interest of its members and injunction order was also issued. The number of members of particular association can never remain static. It is always fluctuating. The number of members are bound to vary from time to time. At the time of the moving of the writ application, there may be 1000 members. But after a few days if the number may increase or decrease, in that event, it would be difficult to extend the interim order to new members and to revoke the interim order in respect of outgoing member. This is bound to create erroneous difficulty. Neither the Court nor the respondents are aware who are the members of the petitioner's association. Unless it is known, it is difficult to implement and/ or to enforce the order and interim order passed in this case. That was the reason for which it was felt necessary by American Court that the members of class should be notified and should be identified. In India apart from persons aggrieved writ petitiones are maintainable as a public interest litigation. In this connection, the liberal approach of the Court in public interest litigation was considered not only in Akhil Bharatiya Soshit Karmachari Sangh v. Union of India but also in Fertilizer Corporation Kamagar Union v. Union of India reported in AIR 1981 SC 344 wherein the majority speaking through Chandrachud C. J. having found that fundamental right of the petitioners has not been violaud only observed that (at p. 350 of AIR) -
"We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide."
Krishna Iyer J. however (for self and Bhagwali J) went into the question of legal standing. The poser was : Assuming that the Government company has acted mala fide or has dissipated public funds, can a common man call into question in a Court the validity of action by invocation of Art. 32 or 226 of the Constitution". The answer was (at p.353 of AIR):
".....locus standi must be liberalised to meet the challenges of the time. Ubi Jus ibi remedium must be enlarged to embrace all interests of public minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets."
In my view, the public interest litigation can on!y be moved whether a section or whole community is involved with such an organisation and where the persons concerned for whose benefit it is moved, are socialiy and educationally backward and are not aware of the legal rights. Public interest litigation is maintainable in our country in case of environmental polution and as a matter of fact Supreme Court entertained such petition relating to environmental polution. In view of the several decisions of the Supreme Court the concept of locus standi must be liberalised and as a matter of fact it has been liberalised. A close reading of those cases indicates that such power could only be exercised by the Court in case where public interest litigant will activise the legal process where individuals cannot approach the Court for various reasons. In competition between Courts and streets as dispenser of justice the rule of law must win the aggrieved person for the law Court and wean him from the lawless street. In the case of S. P. Gupta v. Union-of India which was known as Judges Transfer case, the writ petition was maintained at the instance of some learned Advocates and as such it was pointed out by the Supreme Court that the Advocates on the part of the judges was to file writ application and the Advocate's position was turned in the priest of the temple of justice. This aspect was dealt at length by Bhagwati J. in his leading judgment which was as follows :--
"It may therefore now be taken as well established that where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class or person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application where the weaker sections of the community are concerned such as under-trial prisoners languishing in jail without a trial, inmates of the protective home in Ag'ra, any harijan workers engaged in road construction in the Ajmer district who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil and who are helpless victims of an exploitive society and who do not have easy access to justice, this Court wil not insist on the regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This will readily respond even to letter addressed by such individual acting pro bono publico."
The Writ petitions are also maintainable at the instance of an aggrieved person who can also prosecute the writ application in a representative character and the procedure is analogous to the provisions of O.1 R. 8 of the Civil P.C. where any individual who is person aggrieved may come up before the court and can prosecute such petition in representative character, the persons of the same class who are equally affected, may crime and join as petitioners. The whole purpose of my discussion on this point with reference to the English law or the American law is to highlight this position as to the class of person or persons and/or association who can move writ application. In India the law relating to standing or locus standi may be summarised as follows:--
a). Individual Standing :
Legal personality means persons who are regarded under the law as person being capable of exercising right or having duty have locus standi to move writ application. Individual person aggrieved by any action or inaction the part of a State or authority under Art. 12 of the Constitution which infringed his right, can move the writ application. Similarly partnership firm, company, corporation, labour union etc. can file a writ application if their rights are directly affected.
b). Statutory standing :
When statute has conferred standing or locus standi to any association or persons who may not have a direct personal interest can maintain writ application if it is established that such person or association had been conferred under the statute certain right and that if that right has been infringed. As for example trade union have a right to file writ application as the Industrial Disputes Act had conferred right upon the trade union to espouse the cause of individual workman and where the right conferred upon the trade, union had been infringed. Similarly under the Motor vehicles Act, S. 47(1) of the Motor Vehicle Act before its amendment, conferred power upon the association of operators to file objection and that in connection with the objection filed by those associations the associations had a right to move writ application.
c). Public Interest and citizen participation :
In case of public interest litigation the persons concerned who move such writ application not for enforcing his personal right but filed by public spirited and individual espousing the cause of large number of people who are suffering under some legal wrong or injury and such person or determinated class of person is by reason of poverty, helplessnessor disability or socially or economically disadvantaged position, unable to approach the Court for relief and in such case any member of the public can maintain writ application.
d). Representative action or class action :
Representative action or class action may be initiated by any members of the class affected by any order or action or inaction on the part of the government and/ or authorities and in such a case a large number of persons of the same class may be affected by any action and in such case any one member of that class can file writ application and can prosecute the same as representative appli-
cation after obtaining leave of the Court and in such, case, the principle laid down in O.1 R. 8 is followed by which after the notice is issued pursuant to the order of the court, any member of the class who are affected by such order may join in such writ application as a petitioner and that the Court grants such leave and the members of that class are bound by such decisions. This is permitted by law to avoid multiplicity of proceedings and in such case any decision taken in such case binds the members of class.
14. Unincorporated associations are not legal persons and as such, writ petitions are not maintainable. An association could be formed to protect the interest of consumers, tenants or other groups with the common interest but such group cannot move writ application. No aspect of the representative law has been changing more rapidly than the law governing standing and the standing barrier has been substantially lowered in recent years, but on the basis of the law relating to standing as in England or in America as also in India, it can be held without any difficulty that the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. The members of such association may be affected by common order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. The door of the writ court could be made open at the instance of persons or authorities under the aforesaid four categories and to hold that every Tom, Dick and Harry can move the writ application would render the standing requirement meaningless and would introduce a procedure which is not judicially recognised.
15. In my view, the writ petitioners have no locus standi or standing to file writ application. It is also firmly established principle that the court cannot also decide any question and cannot entertain writ petition for the purpose of academic discussion. In my view, the said associations are not person aggrieved and they have no locus standi to move the writ application. In the instant case, no right has been conferred to the association of truck owners under any law and they have no individual standing. They cannot move the writ application as a public interest litigation or in a representative character and as such in my view, the preliminary objection taken by Mr. Moni Bhusan Sirkar must be sustained and the writ petition must fail on this preliminary ground.
16. Accordingly, the writ petition is dismissed as it is not maintainable at the instance of the writ petitioners. This order is passed without prejudice to the rights and contentions of the individual operators to challenge the validity of the said enhancement if they are so aggrieved.
17. Petition dismissed.