Punjab-Haryana High Court
District Bar Association District ... vs State Of Punjab And Others on 7 October, 2010
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Ajay Kumar Mittal
CWP No.18255 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.18255 of 2010 (O&M)
Date of decision: 7.10.2010
District Bar Association District Fategarh Sahib
-----Petitioner
Vs.
State of Punjab and others
----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present:- Mr. KumarVishav Aggarwal, Advocate for the
petitioner.
Adarsh Kumar Goel,J.
1. This petition seeks a direction to comply with the Punjab VAT Act 2005 (for short, 'the Act') with regard to new registration of firm under section 21 of the Act and refund of tax under section 39 of the Act in regard to clients of the petitioner.
2. Case of the petitioner is that it is a registered Bar association with strength of 27 Advocates. Their clients have applied for allotment of new numbers but they were not being allotted registrations. They have also applied for refund on behalf of their clients and even though, applications seeking refund of about Rs.100 crores are pending, no action is being taken on the said applications.
CWP No.18255 of 2010 23. We have heard learned counsel for the petitioner.
4. We are of the view that the writ petition filed by the petitioner for the relief sought cannot be entertained. No violation of any right of he petitioner has been alleged. The petition has not been filed in public interest. There is no bar to the persons on whose behalf relief has been purportedly sought to directly move the Court. Neither the petitioner has shown any authority to seek relief for the individual clients of which list is annexed as Annexure P.1 nor any reason has been given as to why such clients cannot directly seek the relief.
In Guruvayoor Devaswom Managing Committee v. C.K. Rajan,(2003) 7 SCC 546,, it was observed:
"50. The principles evolved by this Court in this behalf may be suitably summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. (See S.P. Gupta v. Union of India, (1981) Supp SCC 87, People's Union for Democratic Rights v. Union of India, (1982) 2 SCC 494, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 and Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305) CWP No.18255 of 2010 3
(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis- à-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104 and Hussainara Khatoon (I) v. Home Secy., State of Bihar, (180) 1 SCC 81.)
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.
In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167 it was held: (SCC p. 169, para
2) "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot CWP No.18255 of 2010 4 dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances."
(See also Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230.)
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, (1981) 1 SCC 568, S.P. Gupta, People's Union for Democratic Rights, D.C. Wadhwa (Dr) v. State of Bihar, (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333]
(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha.)
(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P (1989) Supp SCC 504 and Forward Construction Co. v. Prabhat Mandal (Regd. (1986) 1 SCC 100] CWP No.18255 of 2010 5
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India, (1989) 1 Supp SCC
251.)
(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr Mahesh Madhav Gosav (1987) 1 SCC 227)
(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morcha, Rakesh Chandra Narayan v. State of Bihar (1989)1 Supp SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718.) In Sachidanand Pandey v. State of W.B (1987) 2 SCC 295, this Court held: (SCC pp. 334-35, para 61) "61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships CWP No.18255 of 2010 6 and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self- imposed restraint on public interest litigants." In Janata Dal v. H.S. Chowdhary this Court opined:
(SCC p. 348, para 109) "109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated.
In Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, it was held: (SCC pp. 762-63, paras 229 & 232) "229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be CWP No.18255 of 2010 7 executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.
* *
232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction."
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice CWP No.18255 of 2010 8 to the parties, they do not have a power akin to Article 142 of the Constitution of India.
(xi) Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule.
Xx xx xxx xxxx
52. This Court in BALCO Employees' Union (Regd.) succinctly opined: (SCC pp. 376-77, paras 77-80) "77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. 'litigation in the interest of the public'.
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the CWP No.18255 of 2010 9 passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words:
'PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
-- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
-- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.).
-- Where judicial law-making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
-- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievance redressal forums).
-- Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water.'
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
CWP No.18255 of 2010 1080. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re- emphasize the same."
5. Applying the above parameters, there is no ground to entertain this petition. Accordingly, this petition is dismissed.
(Adarsh Kumar Goel)
Judge
October 7, 2010 (Ajay Kumar Mittal)
'gs' Judge