Karnataka High Court
Primary Agricultural Cooperative ... vs State Of Karnataka By on 22 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1925
Author: B.Veerappa
Bench: B. Veerappa
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.703/2020
C/W
WRIT PETITION Nos.460/2020 AND 794/2020(CS-EL/M)
In W.P No.703/2020:
BETWEEN:
PRIMARY AGRICULTURAL CO-OPERATIVE
SOCIETY LIMITED,
B. GOWDAGERE,MANDYA TALUK,
MANDYA DISTRICT-570041.
REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER K. N. JAYAVANI. .. PETITIONER
(BY SRI M.R. RAJAGOPAL A/W
SRI SHIVARAMU H. C., ADVOCATE)
IN WP No.460/2020
BETWEEN:
PRIMARY AGRICULTURAL CO-OPERATIVE
SOCIETY LIMITED,
KEELARA,MANDYA TALUK,
MANDYA DISTRICT-570041.
REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER H.T. CHANDRA. .. PETITIONER
2
(BY SRI M.R. RAJAGOPAL A/W SRI SHIVARAMU H. C.,
ADVOCATE)
IN WP No.794/2020
BETWEEN:
PRIMARY AGRICULTURAL CO-OPERATIVE
SOCIETY LIMITED,
HANAKERE,MANDYA TALUK,
MANDYA DISTRICT-570041.
REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER THAMMANNA M.K.
...PETITIONER
(BY SRI M.R. RAJAGOPAL A/W
SRI SHIVARAMU H. C., ADVOCATE)
IN WP Nos.703/2020, 460/2020 & 794/2020
AND:
1. STATE OF KARNATAKA,
BY ITS SECRETARY
DEPARTMENT OF CO-OPERATION
M. S. BUILDING,
DR. B. R. AMBEDKAR VEEDHI,
BANGALORE-560001.
2. STATE CO-OPERATION ELECTION AUTHORITY,
3RD FLOOR, A BLOCK
TTMC BUILDING, K. H. ROAD
SHANTHINAGAR,
BANGALORE-560027.
REPRESENTED BY ITS SECRETARY
3
3. THE DISTRICT REGISTRAR
DEPARTMENT OF CO OPERATIVE SOCIETIES
MANDYA DISTRICT
MANDYA-571401
4. THE RETURNING OFFICER
AND THE DEPUTY DIRECTOR OF
CO-OPERATIVE SOCIETIES,
MANDYA DISTRICT, MANDYA-571401.
5. ELECTION OFFICER
OFFICE OF CO OPERATIVE SOCIETIES
REGISTRAR, 3RD FLOOR, A BLOCK
TTMC BUILDING, KHB ROAD,
SHANTHIANGAR,
BANGALORE-560027.
...RESPONDENTS
(COMMON IN ALL PETITIONS) (BY SRI K.R. NITYANANDA, HCGP FOR R1,R3,R4 AND R5; SRI G.V. SHASHIKUMAR, ADVOCATE FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO PRAYING TO DECLARE THE 97TH AMENDMENT TO THE CONSTITUTION BY INSERTING PART IXB OF THE CONSTITUTION OF INDIA, IS IN VIOLATION OF ARTICLE 368(2) OF THE CONSTITUTION OF INDIA, AND ALSO AGAINST THE BASIC STRUCTURE OF THE CONSTITUTION OF INDIA AND ARTICLE 246(3) OF THE CONSTITUTION OF INDIA ETC.
THE OFFICE HAS RAISED AN OBJECTION THAT DCF TO BE MADE GOOD AGAISNT THE MEMBERS OF THE SOCIETY.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON OFFICE OBJECTION REGARDING NON-PAYMENT OF THE DEFICIT COURT FEE, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:- 4
ORDER ON OFFICE OBJECTION REGARDING NON-PAYMENT OF THE DEFICIT COURT FEE BY THE PETITIONERS The petitioners - Societies in these writ petitions have sought for the following reliefs:
a) Issue a writ of appropriate nature to declare the 97th amendment to the Constitution by inserting part IXB to the Constitution of India is in violation of Article 368(2) of the Constitution of India and also against the basic structure of the Constitution of India and Article 246(3)of the Constitution of India ;
b) Declare that Section 20(2) (a-iv) (a-v) and Section 27-A are consequential and illegal and even otherwise, is ultravires the constitutional mandate under Article 243(ZO)(2) and Article 19(1)(c) read with Article 19(4) of the Constitution of India and is therefore void under Article 13 of the Constitution of India;
c) Issue a writ in the nature of mandamus
directing the respondent to conclude the
processes as required under Rule 13 D of the 5 Karnataka Co-operative Societies Rules and to conduct elections by preparing final voters list without reference to Section 20(2) (a-iv) (a-v) and Section 27-A of the Karnataka Co-
operative Societies Act.
I FACTS OF THE CASE
2. Writ Petition No.460/2020 is filed by the Primary Agricultural Co-operative Society Limited, Keelara, Mandya Taluk, Mandya district - represented by its Chief Executive Officer H.T. Chandra, on behalf of its 1151 members (ineligible voters).
3. Writ Petition No.703/2020 is filed by the Primary Agricultural Co-operative Society Limited, B. Gowdagere, Mandya Taluk, Mandya district - represented by its Chief Executive Officer K.N. Jayavani, on behalf of its 903 members (ineligible voters).
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4. Writ Petition No.794/2020 is filed by the Primary Agricultural Co-operative Society Limited, Hanakere, Mandya Taluk, Mandya district - represented by its Chief Executive Officer Thammanna M.K., on behalf of its 2162 members (ineligible voters).
5. In each of these three writ petitions, Court Fee of Rs.100/- only is paid. Hence, in all these writ petitions, the office has raised an objection that 'the DCF to be made good against the members of the Societies'.
6. It is the case of the petitioners - Co-operative Societies, in all these writ petitions that they are registered under the Karnataka Co-operative Societies Act ('the Act' for short). As on the date of filing of these writ petitions, in Writ No.460/2020, out of the total 1436 members, only 285 members are eligible voters and remaining 1151 members are ineligible voters; In Writ Petition No.703/2020, out of the total 1350 members, only 447 members are eligible 7 voters and remaining 903 members are ineligible voters; and in Writ Petition No.794/2020, out of the total 2367 members, only 205 members are eligible voters and remaining 2162 members are ineligible voters, in view of the amended provisions of Section 20(2)(a-iv) and (a-v) of the Act. In all these writ petitions, the petitioners - Societies have passed separate resolutions and took a decision to challenge the aforesaid amended provisions of the Act and to permit all the members to vote and contest in the election scheduled to be held in the months of January and February -2020. It is further contended that the constitutional amendment brought about by introducing part-IXB of the Constitution itself is against the doctrine of federalism and competence and the consequential amendment is ex-facie contrary, even to the requirements under the scheme of the Constitution. Aggrieved by the vires of the constitutional amendment Part IXB inserted by the Constitution (Ninety-seventh Amendment) Act, 2011, 8 having come into effect from 15.5.2012, as also the vires of Section 20(2)(a-iv)(a-v) of the Act, the petitioners - Societies are before this Court for the relief sought for.
II ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PETITIONERS
7. Heard Sri M.R. Rajagopal along with Sri H.C. Shivaramu, learned counsel for the petitioners; Sri K.R. Nityananda, learned HCGP for Respondents Nos.1,3,4 and 5; and Sri G.V. Shashikumar, learned counsel for Respondent No.2 in all these matters, on office objection regarding non-payment of the Deficit Court Fee.
8. Sri M.R. Rajagopal, learned counsel for the petitioners mainly contended that the Court Fee should be paid based on the main relief and not on the interim relief sought. Since the petitioners - Societies challenging the constitutional validity of 97th amendment of the Constitution and the provisions of Section 20(2)(a-iv)(a-v) of the Act 9 and since common interest is involved and common relief is sought by the petitioners - Societies on behalf of its members and no individual relief is sought for, single court fee of Rs.100/- paid in each of these three writ petitions is sufficient. He would further contend that in view of the provisions of Section 6(3) and 6(4) of the Karnataka Court- Fees and Suits Valuation Act, 1958 ('KCF & SV Act' for short) relating to multifarious suits , the Court fee of Rs.100/- in each of these three writ petitions is sufficient.
9. He would further contend that under Article 11(s) of Schedule-II of the KCF & SV Act, the proper fee for a Petition of the High Court under Article 226 of the Constitution for a writ other than a writ of Habeas Corpus, or a Petition under Article 227 of the Constitution of India is Rs.100/-. He further contended that Rule-7 of the Writ Proceedings Rules, 1977 is only a procedure. He would further contend that in view of the provisions of Sections 6(3) and 6(4) of the KCF & SV Act and Rules 7 and 36 of 10 the Writ Proceedings Rules, 1977, the petitioners - Societies are entitled to pay Court Fee of Rs.100/- only in each of these writ petitions as the single common relief is sought in all these writ petitions. Therefore, office objection has to be overruled.
10. In support of his contentions, learned counsel for the petitioners - Societies relied upon the following judgments:
1. Kusum Ingots & Alloys Limited reported in (2004)6 SCC 254 (paragraphs 21, 22, 27 and 28)
2. ILR 1994 Kar. 470 (paragraph-3)
11. Sri H.C. Shivaramu, learned counsel adopted the arguments advanced by Sri M.R. Rajagopal, learned counsel for the petitioners.
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III ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR RESPONDENTS
12. Per contra, Sri G.V. Shashi Kumar, learned counsel for the Respondent No.2 - State Co-operative Election Authority sought to justify the office objection raised with regard to non-payment of Deficit Court Fee and contended with vehemence that Section 2(f) of the Act defines the word, 'member', which includes independent right. He would further contend that in view of the amended provisions of Section 20(2)(a-iv)(a-iv) of the Act, some of the members of the petitioners - Societies are disqualified to vote in the Election and therefore, they are aggrieved by their individual rights. Therefore in respect of each member, separate Court fee has to be paid. He would further contend that admittedly in the present writ petitions filed by the petitioners - Societies, the list of ineligible members prepared by the respective Chief Executive Officers of the petitioners - Societies are not challenged. 12
13. He further contended that Rule 13-D(5) of the Karnataka Co-operative Societies Rules, 1960 refers to individual rights to vote. He also refers to Section 2-(a-3) of the Act, which defines 'Chief Executive' and submits that the Chief Executive shall prepare and publish the eligibility list. He also refers to Section 20(2) of the Act which is applicable to each member. Section 21 of the Act start with the words, 'every member' and therefore, individual rights are involved. He would further contend that Explanation to Rule - 7 of the Writ Proceedings Rules was deleted w.e.f. 1.10.1981. He also refers to the provisions of Article 11(s) of the Schedule II read with Sections 6(3) and 6(4) of the KCF & SV Act.
14. Sri G.V. Shashi Kumar would contend that the provisions of Section 20(2)(a-iv)(a-v) of the Act relating to disqualification of members to vote in the election is inserted by Act No.3/2013. He would further contend that (Ninety-seventh Amendment) Act, 2011, inserting Part IXB 13 (containing Articles 243ZH to 243ZT) to the Constitution of India, has been struck down by the Division Bench of the Gujarath High Court in W.P. No.166/2012 (PIL) dated 22.04.2013. He would contend that Article 43B has been inserted by the Constitution (Ninety-seventh) Amendment Act, 2011 w.e.f 15.2.2012. Therefore, the office objection has to be upheld directing the petitioners - Societies to pay the Court fee in respect of its members individually.
15. In support of his contentions, the learned counsel for respondent No.2 relied upon the following judgments:
i) Rajendra N Shah vs. Union of India reported in LAWS (GJH) 2013 (4) 405 (paragraph-27).
ii) Gnana Jyothi TCH College, Belur and others vs. The State of Karnataka and others reported in AIR 1998 KAR 99 (FB) 14 relating to Rules 7 and 36 of the Karnataka Writ Proceedings Rules.
iii) Venugopal vs. State of Karnataka
reported in ILR 1993 Kar. 1312 (DB).
16. Sri K.R. Nityananda, learned HCGP while
supporting the office objection raised, contended that in all these writ petitions filed by the petitioners - Societies represented by their Chief Executives, large number of ineligible members are identified by the very Chief Executives. The very writ petitions are not maintainable on behalf of its members as the members of the petitioners - Societies are disqualified by virtue of the amended provisions to contest and vote in the election, thereby they have been deprived of their individual rights. Therefore, he submits that the office objection has to be upheld directing the petitioners - Societies to pay the Court fee in respect of its members individually.
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IV POINTS FOR DETERMINATION
17. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration in these writ petitions are:
i) Whether the writ petitions filed by the petitioners -
Cooperative Societies paying Court Fee of Rs.100/- only in each of these writ petitions on behalf of large number of its members, are maintainable ?
ii) Whether the office of this Court is justified in raising the objection regarding non-payment of the Deficit Court Fee in view of the provisions of Rule - 7 of the Writ Proceedings Rules, in the facts and circumstances of the case ?
V CONSIDERATION
18. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 16
19. Having heard the learned counsel for the parties, it is not in dispute that the petitioners - Societies sought individual relief in respect of 1151, 903 and 2162 members respectively by paying Court fee of Rs.100/- only in each of these writ petitions. The office raised objection directing the petitioners - Societies to pay the Deficit Court Fee against each and every member of the petitioners- Societies.
20. At this stage, it is relevant to consider the definition of 'member' as defined under Section 2(f) of the Act, which reads as under:
2(f) 'member' means a person joining in the application for the registration of a co- operative society and a person admitted to membership after such registration in accordance with this Act, the rules and the bye-laws and includes a nominal and an associate member;17
21. A plain reading of the said definition makes it clear that the 'member' means a person joining in the application for the registration of a co-operative society and a person admitted to membership after such registration in accordance with the Act, the rules and the bye-laws, includes a nominal and an associate member. It is also not in dispute that the ineligible members list is prepared by the CEO of the petitioners - Societies disqualifying certain members as per the provisions of Section 20(2)(a-iv)(a-iv) of the Act.
22. A careful reading of the provisions of sub-section (1) of Section 20 of the Act makes it clear that no member, no representative or no delegate of a society shall have more than one vote in the election of the members of the Board of the Co-operative society. Sub-section (2) of Section 20 of the Act clearly states that following shall not have the right to vote in an election viz., a nominal or associate member; an individual member who is a 18 defaulter; members admitted as per clauses (d), (e), (f) and (g) of sub-section (1) of Section 16, who are defaulters; and a person, who has become member of a society not later than twelve months prior to the date of such meeting or election. The amended provisions of Section 20(2)(a-iv)(a-v) clearly depict that a member, a representative or a delegate who has failed to attend three general meetings out of the last five general meetings and a member or a representative who has failed to utilize such minimum services or facilities in a co-operative year as may be specified in the bye-laws for three consecutive co- operative years, shall not have the right to vote in an election of members of the Board. Admittedly in the present case, some of the members of the petitioners- Societies are disqualified to vote in view of the amended provisions of Section 20(2)(a-iv)(a-v) of the Act. Therefore, the petitioners - Societies sought for right to vote in respect of its members individually. 19
23. The provisions of Section 21 of the Act depicts the manner of exercising vote and as per this Section, every member, every representative, every delegate and every nominee shall exercise his vote in person and not by proxy at a general meeting or an election of the members of the Board of a Co-operative society. Thus, it also stipulates individual right to vote.
24. These writ petitions are filed by the petitioners - Societies represented by their Chief Executive Officers. The averments made in the writ petitions clearly indicate that "the petitioners - Societies took a decision by passing a resolution on 26.12.2019 to challenge the aforesaid amended provisions of law and to permit all the members to vote and contest in the election scheduled to be held in the month of January-2020 or in the month of February- 2020, on the ground that the petitioners - Societies have not clearly informed by notice to the members of the Society that the members who have not attended three 20 General Body Meetings continuously are not allowed to contest in the election or to vote in the election. Such information was not provided by the petitioners - societies to their members well in time. It is further stated in the writ petitions that in view of the amended provisions, the persons who have not attended three General Body Meetings held by the Society are prevented from contesting and participating in the election and therefore, it amounts to disqualification of the members."
25. A careful reading of the averments made in all these writ petitions clearly indicate the members of the petitioners - societies who want to contest in the election and vote are prevented from participating in the election and they are disqualified by virtue of the amendment. Therefore, the prayer sought in these writ petitions embraces more than one cause of action and the separate relief sought viz., to restrain the respondents from enforcing the provisions of Section 20(2)(a-iv)(a-v) of the 21 Act against each of the members of the petitioners- societies. Hence, cause of actions are separate and distinct and not common and liable to pay separate court fee in respect of each of the ineligible members of the petitioners
- Societies though the joint single writ petition is permissible.
26. Sri M.R. Rajagopal, learned counsel for the petitioners though contended that in view of the provisions of Sections 6(3) and 6(4) of the KCF & SV Act, the common writ petitions filed by the members of the petitioners - Societies by paying Rs.100/- only in each of these writ petitions, is maintainable, this Court is not in a position to accept the said contention since in view of Clause(s) of Article 11 of Schedule II read with sub-sections (3) and (4) of Section 6 of the of the KCF & SV Act, each of the member of the petitioners-Societies in the present writ petitions is liable to pay separate Court Fee of Rs.100/- as if he had presented a separate writ petition. The 22 petitioners have challenged the constitutional validity of the 97th amendment of the Constitution and the provisions of Sections 20(2)(a-iv)(a-v) and 27A of the Act in these writ petitions and if the writ petitions are decided on merits, naturally the members of the petitioners - Societies become eligible to contest and vote in the election and their individual disqualification made by virtue of the amendment will be nullified. Therefore, the contentions of the learned counsel for the petitioners cannot be accepted.
27. It is relevant to state that Article 11(s) of the Schedule II of the KCF & SV Act stipulates that proper fee payable for a petition of the High Court under Article 226 of the Constitution for a writ other than the writ of Habeas Corpus, or a writ petition under Article 227 of the Constitution, is Rs.100/-. Further, the provisions of Section 6(4) of the KCF & SV Act shall apply mutatis mutandis to memoranda of appeals, applications, petitions and written statements. Therefore, each and every writ petition, 23 where, the individual relief is sought, separate Court Fee has to be paid.
28. It is relevant to consider the provisions of Rules 7 and 36 of the Writ Proceedings rules, which read as under:
7. PROCEDURE FOR FILING COMMON OR JOINT PETITIONS:-
(1) Several persons having similar but separate and distinct interest in the subject matter of controversy involving common questions of law and facts may file a common petition. Such a petition shall be treated as equivalent to the filing of such number of writ petitions as there are petitioners and shall be numbered accordingly and the Court Fee payable on such writ petition shall be the same as payable on the number of writ petitions, when filed separately.
For all other purposes, such as issue of notice etc., it shall be treated as one writ petition. Such common Writ Petition shall be in Form No. III appended to these Rules and shall be supported by the affidavit of any one of the petitioners as in Form No. II. For such common petition one Vakalat with one set of Court Fee Stamp shall be sufficient.
24(2) Several persons having common or joint interest but not seeking any individual relief [, interim or final] may file a single petition.
36. Appeal against common order on several writ petitions.- The provisions of rule 7 shall, mutatis mutandis apply to appeals filed from a common order.
29. A careful reading of the aforesaid provisions, clearly indicate that several persons having similar but separate and distinct interest in the subject-matter of controversy involving common questions of law and facts may file a common petition. Such a petition shall be treated as equivalent to the filing of such number of writ petitions as there are petitioners and shall be numbered accordingly and the Court Fee payable on such writ petition shall be the same as payable on the number of writ petitions, when filed separately. For all other purposes, such as issue of notice etc., it shall be treated as one writ petition. Such common Writ Petition shall be in Form No. III appended to these 25 Rules and shall be supported by the affidavit of any one of the petitioners as in Form No. II. Sub-clause (2) of Section-7 clearly indicates that several persons having common or joint interest but not seeking any individual relief, interim or final may file a single petition. Admittedly in the present case, the petitioners - Societies seeking individual relief on behalf of its members and therefore, cannot maintain single writ petition by paying Rs.100/-, but they can maintain common writ petition paying separate Court fee in respect of individual members of the petitioners - Societies.
30. This Court in the case of Mount Corporation vs. Director of Industries and Commerce reported in AIR 1965 Mysore 143 observed that the petitioners therein had sought to challenge in one writ petition, the actions of the State Governments on the basis of which their applications for licenses for import of stainless steel, were rejected and this Court held that each of the petitioners had distinct and 26 separate interest as distinguished from common or joint interest, in the subject matter of controversy in the writ petition and hence could not maintain a common or joint writ petition.
31. In the case of Vasudevan vs. C.S. Co-
operative Bank reported in AIR 1977 Kerala 203, the petitioners therein had filed a writ petition challenging the decision of the Co-operative Appellate Tribunal and on the question of Court fee payable on such petition, the Kerala High Court held, that where a plurality of petitioners or appellants, having separate and individual interest in the subject matter of the petition or the appeal, joint in one action, although only one petition or appeal may be filed, court fee has got to be paid separately on the petition or the appeal by each one of the petitioners therein, having an individual interest.
27
32. Admittedly, in the present case, by virtue of the amended provisions, which is the subject matter of the present writ petitions, some of the members of the petitioners - Societies are disqualified to contest and vote in the Election, thereby they have been deprived of their individual rights. Therefore, though common writ petition came to be filed, the petitioners - Societies in these writ petitions have to pay separate Court fee for the individual relief sought for on behalf of its members.
33. Where several persons claim an interest in the subject matter of controversy, as members of a class or community or residents of a locality, they can be said to have a common interest in respect of such subject matter. An example of such common interest is the interest of the villagers to graze their cattle in the village pasture or Gomal land. Another example of such common interest is the interest of the members of a religious denomination to immerse a deity in a particular tank. Another example is in 28 case of registration of a particular society cancelled or annulled. In those circumstances, the common writ petition may be filed by paying common Court fee of 100/-.
34. Admittedly, the averments made in these writ petitions clearly indicate that the present writ petitions are filed by the petitioners - Co-operative Societies represented by their Chief Executive Officers, who prepared the list of ineligible members of the society to contest and vote in the election by virtue of the amended provisions and therefore have to pay separate Court fee on each individual relief sought in respect of the members.
35. The Division Bench of this Court while considering the provisions of KCF & SV Act in the case of Ramesh Pande and others vs. State of Karnataka and others reported in ILR 1982 344 held at paragraphs 19 and 20 as under:
29
19. The question whether it can be said that a common writ petition embraces two or more causes of action as would make the petitioners therein liable for payment of separate court fees as if each of them had presented separate writ petitions, having come up for consideration before the Supreme Court in Mohan Singh v. State of Haryana [A.I.R. 1981 S.C. 484 at 485.] , it has answered that question thus:
"Having regard to the nature of these cases 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.
....................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 30 petition and each such person would be liable to pay legally payable court-fee on his petition. It would be a travesty of law if one were to hold that as each one uses high way, he has common cause of action with the rest of truck pliers."
The above pronouncement of the Supreme Court in our view, puts it beyond doubt that each of the petitioners in the present writ petition, has his own distinct and separate cause of action arising out of his liability to pay the tax individually under the impugned taxing provision. Since the present writ petition embraces more than one of such causes of action and the separate reliefs sought therein, namely, to restrain the respondents from enforcing the impugned taxing provision against each of the petitioners, are based on them (such causes of action), it (the present writ petition) is chargeable with the aggregate amount of the court fees with which the petitions would be chargeable under the Act, if separate writ petitions have been presented in respect of several causes of action, as required by sub-section (3) r/w sub-section (4) of Section 6 of the Act.
31
20. Hence, we uphold the contention of the learned Additional Government Advocate that under clause
(s) of Article 1 of Schedule-II to the Karnataka Court Fees and Suits Valuation Act, 1958, read with sub- sections (3) and (4) of Section 6 of that Act, each of the petitioners in the present writ petition, is liable to pay thereon a separate court fee of Rs. 100 as if he had presented a separate writ petition.
Consequently, we uphold the ruling of the learned single Judge, as regards the aggregate amount of court fees payable on the present writ petition.
36. Another Division Bench of this Court in the case of Venugopal vs. State of Karnataka reported in ILR 1993 Kar. 1312 while considering the provisions of Rules 7 and 36 of the Writ Proceedings Rules,1977 held at paragraphs 6 and 7 as under:
6. In Ramesh Pande's case [1982 (1) KLJ 466.] , Rule 7 of the Rules, has been interpreted and it has been specifically laid down that in a case where each of the petitioners will have only a separate and distinct interest in the subject matter of the controversy in the Writ Petition, though the injury 32 suffered by each would be similar; and the common interest is not the same as similar interest; therefore the petitioners would be entitled to present a single Writ Petition by reason of the Explanation to Rule 7(2) of the Rules. It is also further held that in a case where each of the petitioners will have his own distinct and separate cause of action, the Writ Petition embraced more than one cause of action and separate reliefs, the Petition would be chargeable with the aggregate amount of court fee, as if separate Petitions are presented by each of the petitioners, as required by Section 6(3) and (4) of the Court Fess Act.
7. As already pointed out in the instant case also, each of the petitioners in the Writ Petitions has distinct and separate interest and not a common or joint interest in the subject matter of the Writ Petitions and as such, they are entitled to file a common Writ Petition. However, they are liable to pay the separate Court fee and accordingly, they have paid a separate Court fee. Whereas, in Ananthapadmanabhaiah's case [1982 (1) KLJ 405.] , the petitioner therein was only one, who had several mortgages in his favour, which were considered by the Executive Magistrate under the 33 Debt Relief Act, and a common order was passed.
The petitioner had challenged the same in the Writ Petition. The office raised an objection that the petitioner was required to pay a court fee in respect of each of the mortgages because the cause of action was distinct and the petitioner had clubbed several causes of action in one Petition. The Division Bench over-ruled the office objection and held that it would be open to the petitioner to include several causes of action in one Petition and in that event it would not be necessary for him to pay a separate court fee on each cause of action. It was further held that Rule 7 of the Rules, dealt with common and joint petitions filed by several persons and it had not dealt with petitions filed by the same person, but based upon different causes of action and prayed for different reliefs upon such causes of action. Thus, it is clear that the Decision in Ananthapadmanabhaiah's proceeded on a different set of facts and as such, it was held that Rule 7 of the Rules, was not attracted.
37. The Full Bench of this Court in the case of Gnana Jyothi TCH College, Belur and others vs. The State of Karnataka and others reported in AIR 1998 Kar. 99 while 34 considering the provisions of Rules 7 and 36 of the Writ Proceedings Rules, held at paragraph-1 as under:
1. The question of law which has been referred for the decision of this Full Bench is as to whether in a common petition/appeal filed by several petitioners/appellants involving common questions of law and facts, the Court fee payable thereon will be by treating the said writ petitions/appeals as one or distinct. It appears that the present appellants had taken a plea before the Division Bench of this Court that in case any petition/appeal, filed is pertaining to a common grievance, then the joint petitioners/appellants are required to file only one set of Court fee. For that purpose, they had placed reliance on an order in K.M. Nagaraj v. State [ W.A. Nos. 1877 & 1887 of 1996 dt. 22.7.1986.] . The said order is to the following effect:
"These are appeals filed by persons who have filed individual and separate Writ Petitions. In our opinion, it is unnecessary to file separate appeals, since the appellants have got a common grievance against the order made by the learned Single Judge vacating the 35 interim stay in the writ petitions. Therefore, the appellants are permitted to file only one appeal. The excess Court fee of Rs. 1,000/- paid is ordered to be refunded."
In our opinion, the question posed before us depends on a reading and interpretation of Rules 7 and 36 of the Writ Proceedings Rules 1977 (in short "the Rules") framed by the High Court by virtue of Articles 226 and 227 of the Constitution of India. These Rules are to the following effect:
"Rule 7: Procedure for filing common or joint petitions:
1) Several persons having similar but separate and distinct interest in the subject matter of controversy involving common questions of law and facts may file a common petition. Such a petition shall be treated as equivalent to the filing of such number of Writ Petitions as there are petitioners and shall be numbered accordingly and the Court fee payable on such Writ Petition shall be the same as payable on the number of Writ Petitions, when filed separately. For all other purposes, such as issue of notice 36 etc., it shall be treated as one writ petition. Such common Writ Petition shall be treated as one writ petition. Such common Writ Petition shall be in Form No. III appended to these Rules and shall be supported by the affidavit of any one of the petitioners as in Form No. II. For such common petition one Vakalat with one set of Court Fee Stamp shall be sufficient.
(2) Several persons having common or joint interest but not seeking any individual relief interim or final may file a single petition.
Rule 36: Appeal against common order on several Writ Petitions-
The provisions of rule 7 shall, mutatis mutandis apply to appeals filed from a common order."
In our opinion, the language employed in the above quoted Rules is plain and simple and does not call for any rule of interpretation. It has been succinctly laid down in the said rule that though a common petition involving common questions of law and facts is permissible to be filed despite the fact that the several persons joining therein may have similar but 37 separate and distinct interest in the subject matter of controversy, but they will be required to pay Court fees by treating the petitioners/appellants or such individuals as distinct and separate. Therefore, we have no hesitation in holding that since the present appellants joining hands to file a common appeal but having separate and distinct interest, they are liable to pay separate set of court fees. It appears that the present appellants have paid only one set of court fee and the liability of the appellants to pay separate set of court fees were kept open. Therefore, the appellants are directed to pay the remaining court fee within four weeks from today. In case of their failure to pay the same, appropriate directions for recovery thereof will be issued in accordance with law.
38. This Court while considering the provisions of Rules 7 and 36 of the Writ Proceedings Rules, in the case of Mithilabai vs. KSRTC reported in ILR 1994 KAR. 470 while holding the decision in the case of Nagaraj vs. State {Writ Appeal Nos.1877 to 1887 of 1986 decided on 22.7.1986} as per incuriam, held at paragraph-3 as under: 38
3. A conjoint reading of the said Rules clearly indicates that where the common Appeal is against an interim or a final order and if that covers more than one person having similar but separate and distinct interest in the subject matter of controversy involving common questions of law and facts, then parties challenging such an interim or final order will have to file separate Appeals paying separate Court fee; however, they may file the same on one set of papers and may also file only one certified copy of the impugned order and get the other copies dispensed with. Therefore, the office will have to treat these Appeals as five Appeals and the appellants will be required to pay Rs. 500/- Court fee in all. Court fee of Rs. 100/- has already been paid and the balance Court fee of Rs. 400/- shall be paid within a week from today.
39. Learned counsel for the petitioners - Societies relied upon the Judgment rendered by the Hon'ble Supreme Court in the case of Kusum Ingots & Alloys Limited vs. Union of India and another reported in (2004)6 SCC
254. This Court has no quarrel with regard to the 39 principles enunciated by the Hon'ble Supreme Court in the above judgment while interpreting the provisions of sub- clause (2) of Article-226 of the Constitution of India. But, the said judgment has no application to the facts and circumstances of the present case. Admittedly in the present case by virtue of the amended provisions of Section 20(2)(a-iv)(a-v) of the Act, some of the members of the petitioners - Societies are disqualified to contest and vote in the election, thereby they have been deprived of their individual rights. Therefore, the Court fee is required to be paid by treating each of the ineligible members of the petitioners - Societies, has distinct and separate individual interest. In the circumstances, the petitioners - Societies are bound to pay separate court fee in respect of its members, in view of the provisions of Rules 7 and 36 of the Writ Proceedings Rules.
40
VI CONCLUSION
40. For the reasons stated above, the 1st point raised in these three writ petitions is answered in the negative holding that the writ petitions filed by the petitioners - Co- operative Societies paying Court Fee of Rs.100/- only in each of these writ petitions on behalf of large number of its members, are not maintainable. The Court fee is required to be paid by treating each of the ineligible members of the petitioners - Societies, has distinct and separate individual interest. Consequently, the 2nd point is answered in the affirmative holding that the office is right in raising the objection regarding non-payment of the Deficit Court Fee, in view of the provisions of Rule-7 of the Writ Proceedings Rules, 1977 in the facts and circumstances of the case.
VII RESULT/DECISION
41. In view of the above, the office objection with regard to non-payment of the Deficit Court Fee, is upheld. 41 The petitioners - Societies in these three writ petitions are hereby directed to pay the Deficit Court Fee forthwith before pursuing the writ petitions further. The Court fee is required to be paid by treating each of the ineligible members of the petitioners - Societies, has distinct and separate individual interest. In case of failure to pay the Deficit Court Fee, the petitioners are not entitled to pursue the writ petitions further and the writ petitions will have to be dismissed for non-payment of the Deficit Court Fee payable by the members of the petitioners-Societies.
42. This Court has not considered the merits and demerits of the matter urged by the learned counsel for the parties, at this stage and this order is confined only with regard to payment of the Deficit Court Fee by the petitioners - Societies on behalf of its members.
43. All the contentions of learned counsel for the parties with regard to merits and demerits of the case are 42 left open to be urged at the time of final disposal of these writ petitions subject to payment of Court Fee as stated supra.
Ordered accordingly.
Sd/-
JUDGE Gss/-