Kerala High Court
Mulavukad Residents All Party ... vs State Of Kerala on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WP(C).No.11964 OF 2015(S)
PETITIONER:
MULAVUKAD RESIDENTS ALL PARTY UNITED ASSOCIATION
AGED 57 YEARS (SARVAKAKSHI EKOPANA SAMITHY MULAVUKAD),
REPRESENTED BY ITS TREASURER, N.A.M.KABEER,
MULAVUKAD P.O., ERNAKULAM, PIN - 682 504.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF HEALTH, DIRECTORATE OF HEALTH SERVICES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 DISTRICT MEDICAL OFFICER, ERNAKULAM, GENERAL HOSPITAL
CAMPUS, PARK AVENUE, ERNAKULAM, PIN - 682 011.
4 MEDICAL OFFICER-IN-CHARGE, PRIMARY HEALTH CENTRE,
MULAVUKAD, ERNAKULAM, PIN - 682 504.
5 GOSHREE ISLAND DEVELOPMENT AUTHORITY (GIDA)
GOSHREE ROAD, ERNAKULAM, COCHIN - 682 -031,
REPRESENTED BY ITS SECRETARY.
6 MULAVUKAD GRAMA PANCHAYATH, MULAVUKAD PO,
ERNAKULAM, PIN - 682 504, REPRESENTED BY ITS SECRETARY.
7 DISTRICT COLLECTOR, ERNAKULAM DISTRICT,
CIVIL STATION, KAKKANAD, COCHIN - 682 030.
SRI. SURIN GOEOGE IPE, SR. G.P. FOR R1 TO R4 AND R7
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-01-2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.11964 OF 2015(S)
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JUDGMENT
Dated this the 21st day of January 2021
S.MANIKUMAR, C.J.
This public interest litigation is filed by Mr.Basil Attipetty seeking to
arrange inpatient treatment in Government Hospital at Mulavukad Island.
During the pendency of the writ petition, the learned counsel for the petitioner
has expired. Main prayers sought for in the writ petition are as follows:
i) issue a writ of mandamus or any other appropriate writ, order or
direction, directing the respondents 1, 2 and 3 to appoint the
required number of doctors and other para-medical staff in the
Government hospital at Mulavukad so as to have treatment of
patients as inpatients;
ii) direct the 1st respondent to instruct respondents 2 and 3 to take
all further necessary steps to facilitate inpatient treatment in
Mulavukad Government Hospital;
iii) direct the first respondent to file a detailed report with regard
to the steps the Government has taken to arrange inpatient
treatment facility in the Mulavukad Government Hospital;
iv) direct the first respondent to pass appropriate orders on Ext.P3
representation.
2. Admittedly, instant writ petition, though styled as a Public Interest
Litigation, is filed by an unregistered body - "Mulavukad Residents All Party
United Association". Therefore, without going into the merits, maintainability
of a public interest litigation by an unregistered body has to be considered.
WP(C).No.11964 OF 2015(S)
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There are umpteen number of decisions of various High Courts with respect to
the maintainability of public interest litigations filed by an unregistered
Association, which are reproduced hereunder for ready reference:
(i) In The North Arcot District Pawn Brokers' Association and Ors.
v. The Secretary to Government of India, Ministry of Finance
(Department of Revenue and Insurance) and Ors. reported in
(1975) 1 MLJ 290, the High court of Madras opined as follows:
"13............ It is well established that only a person whose
rights are alleged to have been threatened or transgressed or on
whom obligations are imposed by any statute can approach this
Court invoking the jurisdiction of this Court under Article 226 of
the Constitution of India. It is not the case of any these
Associations that the Association as such is carrying on business
of pawnbroker and therefore the said Association as such has
been called upon to discharge any obligation or perform any duty
imposed by the Gold Control Act. Therefore, the said Associations
cannot invoke the jurisdiction of this Court under Article 226 of
the Constitution of India. That is the view taken by Ramaprasada
Rao, J., in his judgment dated 3 rd April, 1973 in The Polur Town
Panchayat Taxpayers Association v. The Polur Town Panchayat and Ors.
W.P. No. 2197 of 1972 dated 3 rd April, 1973. in respect of a writ petition
filed by the Polur Town Panchayat Tax Payers' Association
challenging the levy of tax made by the Panchayat. The learned
Judge pointed out;
The petitioner is admittedly a society registered under the
Societies Registration Act. Under Section 6 every society no doubt
can sue or be sued in its name and the provisions of the Act make
the society a legal entity by itself. It has a separate existence in
the eye of law and can act in its own name and in the manner
prescribed by the Act. It therefore, follows that the petitioner
association is an independent legal person.
If such an independent legal person approaches this Court
exercising extraordinary jurisdiction and demands an issue of
rule in the nature of certiorari, then it should be in a position to
establish beyond doubt that its legal right is affected or by the
WP(C).No.11964 OF 2015(S)
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enforcement of the challenged or impugned order, the petitioner
would be aggrieved.
In holding that the association as such could not file a writ
petition, the learned Judge followed an earlier decision of a Bench
of this Court in Authoor Vivasaya Abhivirdhi Sangam and Ors. v. State
of Madras by the Secretary to Government, Revenue Department, Fort
St. George, Madras-9 W.A. Nos. 49 to 52 and 58 to 60 of 1963. The Bench
also was dealing with writ petitions filed by certain registered
and unregistered Associations and with reference to those
associations, the Bench pointed out:
The appellants in W.A. Nos. 49, 52 and 60 of 1963 are
associations which have been registered under the Societies
Registration Act. Those in W.A. Nos.51 and 58 and 59 of 1963 are
unregistered associations which cannot be regarded as having
any independent legal existence. They cannot obviously file or
maintain applications under Article 226 of the Constitution. Even
as regards registered societies it cannot be said that they are
persons aggrieved by the order of the Government. It has not
been claimed that the associations or any one of them own lands
in the ayacut and that the imposition of the additional
assessment directly affected them or the particular association as
a society. It may be that the members of the association feel
aggrieved by the enhancement of the assessment, and in that
sense the society might perhaps be interested in doing all things
necessary for getting them reliefs. That cannot amount to legal
grievance of the society.
Having regard to this legal position established by the
decisions of this Court, I hold that these writ petitions filed by the
three associations are not maintainable and therefore they are
dismissed."
(Emphasis supplied)
(ii) In Tamil Nadu Panchayat Development Officers Association,
Madras v. Secretary to Govt. of Tamil Nadu, Rural Development
and Local Administration Dept., Madras and Ors. reported in AIR
1989 Mad 224, a Hon'ble Full Bench of Madras High Court observed as
follows:
"7. The question that has been referred to a Full Bench by a
Division Bench to which one of us (Mohan, J. as he then was) is as
WP(C).No.11964 OF 2015(S)
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follows : -
"Whether an unregistered association can maintain a writ
petition under Article 226 of the Constitution of India." After
going through the papers and on hearing the counsel, we are of
the view that in view of Rule 2-B of the Rules framed by virtue of
Article 225 of the Constitution, to regulate proceedings under
Article 226 of the Constitution, this question pales into
insignificance, as any body of persons who wish to jointly agitate
a matter or espouse a common cause can invoke the benefit of
the said rule. Accordingly, we hold that an unregistered
Association cannot maintain the writ petition."
(Emphasis supplied)
(iii) In Porathissery Panchayat Tax Payees Association v.
Executive Officer and Ors. 1989 (1) KLJ 664, this Court held as
follows:
"By expanding the principle of locus standi third parties were
permitted to approach the court when there are physical restraint
such as in habeas corpus cases or when socio economic factors are
involved, and when volunteer representatives are allowed to
approach the court on behalf of the poor and oppressed (See
Gobindram v. Union of India A.I.R. 1981 S.C. 928 (Bhagalpur blinded
prisoners) and in Olga Tellis v. Bombay Municipal Corporation - A.I.R.
1986 S.C. 180 (Bombay Pavement Dwellers). There are also cases where
no traditional individual rights existed to be vindicated but rights
diffused among the public generally are to be vindicated when
under the principle of citizen standing, the petition was
entertained. These are cases relative to residuary power to
Transfer of Judges in S.P. Gupta & others v. President of India &
others - 1982 S.C. 149;"
The law relating to locus standi, payment of court fee etc. cannot
be ignored by the petitioner in challenging the individual
assessment orders. The larger question whether an
unincorporated association of persons can file a writ petition also
arises. When a number of individuals are affected by an official
act, they can ordinarily bring a legal proceeding to challenge that
only if all such persons join in the proceedings by name, except
where the law confers upon them, a legal personality as a
WP(C).No.11964 OF 2015(S)
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collective body such as an association which is incorporated by
statute or formed under a statute."
(iv) In Sand Carrier's Owner's Union and Ors. v. Board of Trustees
for the Port of Calcutta and Ors. reported in AIR 1990 Cal.176, the
High Court of Calcutta observed as follows:
"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."
(Emphasis supplied)
(v) In Jalore District Teachers' Association, Jalore v. State of
Rajasthan and Ors. (RLW 1997(2) Raj. 1091), the High Court of
Rajasthan, while dealing with the Jalore District Teachers' Association
case, observed as follows:
"5................in view of the latest Supreme Court judgment in case
of Shri Mahendra Kumar Gupta vs. Union of India (1995 JT (1) SC 11) as
well as full bench judgment of Jaipur Bench of this Court in case
of R.S.E.B. Accountants Association, Rajasthan, Jaipur through its
convenor Tej Singh Arora v. R.S.E.B. and another [1995 (3) WLC 1)] It is
WP(C).No.11964 OF 2015(S)
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not in dispute that the petitioner association is not a registered
association. The Apex Court as well as Full Bench of this Court
have held that the unregistered association has no fundamental
right to approach this Court under Article 226 of the Constitution
of India. The Full Bench of this Court in the case of R.S.E.B.
Accountants' Association (supra) has laid down certain conditions
for entertaining such petitions, which are (a) That the members
of the said association should have sufficient strength so as to
come in the category of a large sect of public, (b) That the
members should be identifiable, (c) That the members must be of
the category of poor/illiterate/helpless or disabled, (d) That the
individual member must not be capable of filing a writ petition,
(e) That the entire body of the members must authorise the
association to protect their legal rights, (f) That such an
association must have its own Constitution, and (g) That there
must be authority to file a writ petition on behalf of all the
members.
8. In view of the above, there is no alternative for this Court but
to dismiss this writ petition solely on the ground of
maintainability of the writ petition as it was filed by the
unregistered association, which is not maintainable. Accordingly,
it is dismissed."
(Emphasis supplied)
(vi) In Parents Teachers Association and Ors. v. Chairman,
Kendriya Vidyalaya Sangathan and Ors. reported in AIR 2001 Raj
35, the High Court of Rajasthan speaking for the Bench, Chief Justice
Dr. A. R. Lakshmanan, in paras 12 and 13 observed as under:
"(12). The appellant-petitioners have not placed before this
Court any document to show that the Parents- Teachers
Association is a registered and recognised association. The writ
petition has been allegedly filed in public interest and the
alleged large interest of the students. It is evident that the so-
called Parents- Teachers Association is an unregistered and
unrecognised association and, therefore, in our view, has no
fundamental right to approach this Court under Article 226 of
the Constitution. This point has been concluded by the decision
of the Apex Court in the case of Mahendra Kumar Gupta v. Union of
WP(C).No.11964 OF 2015(S)
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India and ors. (JT 1995 (1) SC 11); and by the decision of Full Bench
of this Court in the case of R.S.E.B. Accountant's Association of
Rajasthan v. The R.S.E.B. (1995(3) WLC 1, RLW 1995(2) Raj. 495). A reply
to the preliminary objection raised by the respondents was also
made by the appellants. It is stated that the Parents-Teachers
Association has been recognised by the KVS and that the
Principal is the Vice Chairman of the said Association and hence,
the Association is competent to file the writ petition on behalf of
the students. In our view, the above reason cannot be considered
as a valid reason for maintaining the writ petition. It is not in
dispute that the Association is not a registered body and
recognised Association. Thus, after examining this point of law
in detail and placing reliance on various judgments delivered by
the Apex Court from time to time, the Full Bench of this Court in
the case of RSEB Accountant's Association (supra) held as under:
It may also be observed that an unregistered association
has no fundamental right to approach this Court under Article
226 of the Constitution and this point is concluded by the
decision in the case of Shri Maninder Kumar Gupta v. Union of India,
Ministry of Petroleum and Natural Gas (1995) 1 SCC 85. A decision in
the case of Akhil Bharatiya Soshit Karamchari Sangh v. Union of India
and Ors. (1981) I LLJ 209 SC was relied where the non-registered
Association was held to apply under Article 32 of the
Constitution. We may observe that there had been number of the
instances of public interest litigation where large body of
persons is having the grievance against inaction of the State.
Even letters have been considered to be a writ petition but all
these are the matters where large section of public is affected
and the personal interest of any person or a smaller section as in
the present case, is not involved. Even in the case of People's
Union for Democratic Rights v. Union of India (1982) II LLJ 454 SC
when the question of locus standi was considered, the Hon'ble
Supreme Court had taken into consideration the poverty,
illiteracy and the ignorance obstructing and impeding
accessibility of the judicial process and on that ground it was
considered that the writ petition can be filed. In D.S. Nakara and
Ors. v. Union of India (1983) I LLJ 104 SC the old pensioners
individually were unable to undertake journey through
labyrinths of costly and protracted legal judicial process for
allowing to espouse their cause. In case of S.P. Gupta and Ors. v.
WP(C).No.11964 OF 2015(S)
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President of India [1982] 2 SCR 365 poverty, helplessness and
disability or social or economic disadvantaged, position was
considered a sufficient ground for maintaining the writ petition.
There had been other decisions of the Apex Court as well and
principles which emerge from all of them are as under:
(a) That the members of the said association should have
sufficient strength so as to come in the category of a large sect of
public.
(b) That the members should be identifiable.
(c) That the members must be of the category of poor/
illiterate /helpless or disabled.
(d) That the individual member must not be capable of filing a
writ petition.
(e) That the entire body of the members must authorise the
association to protect their legal rights.
(f) That such an association must have its own Constitution, and
(g) That there must be authority to file a writ petition on behalf
of all the members.
(13) In the instant case, none of the grounds mentioned above in
(a) to (g) have been satisfied by the present appellants to
maintain the writ petition. Since the above conditions are not
fulfilled such an unregistered association cannot file writ
petition in respect of the legal rights of the said association for
the alleged breach of fundamental right as the association itself
has no fundamental right of its own.
(vii) In Joint Action Committee of PWD, Manipur v. State of
Manipur and Ors. 2008 (Supp.) GLT 131, at paragraphs 8 and 9, it
was held as under:
"8. This Court has given anxious consideration to the
submissions of the learned Counsel of the rival parties as well as
the records available and the Law Reports referred to by the
learned Counsel. It is an admitted position that the present writ
petitioner is not a registered Association as required to be a
Juristic person to file a writ petition before the court of law.
Tough in the writ petition, the petitioner Contended that it is
WP(C).No.11964 OF 2015(S)
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the representative of 3 registered trade Unions/Associations but
in support of its contention, no document is annexed to the writ
petition and also there is no such averment in the petition to the
effect that the disengaged M.R. Workers are the members of it,
rather, it appears from the records that 7 persons, who were re-
engaged by the respondents, they themselves filed separate writ
petitions Challenging their respective order of disengagement
and this Court in those writ petitions passed order in favour of
them. As the respondents initially did not comply with the order
of this Court, those M.R. workers filed Contempt petitions before
this Court and while the contempt petitions, being Contempt No.
127 of 1998, 234 of 1999 and 233 of 2002 were pending, the
respondents re-engaged them which will be evident from
Annexure-A/12 to the rejoinder affidavit filed by the petitioner.
Unless the fundamental and/or legal and any other right of a
citizen and/or juristic person has been affected by any action of
the authority and/or any body and if the petitioner filed any
writ petition challenging the wrong action of any authority in
which it is in no way connected in such wrong action, this Court
should not exercise its discretionary power under Article 226 of
the Constitution of India, as the present case is one of such cases.
The aforesaid observation is based on the decision of this Court
as well as the Apex Court.
9. This Court in the case of All Manipur DIC Supervisors
(supra) specifically held that when an Association is not a
registered one under the Societies Registration Act, 1860 or
under any other then the writ petition filed by such Association
is not maintainable. Same view was expressed by this Court in
its Judgment and order dated 22.6.2005 in WP(C) No. 902 of 2002
and the judgment and order dated 28.2.2005 passed in WP(C) No.
978 of 2004. Even in the case of Land Used Board (supra) this
Court also held that an unregistered Association is not a Juristic
person and that apart no legal or any other right of the said
Association was violated and, hence, the said Association was
violated and, hence, the said Association was not aggrieved
person. This Court further held in the aforesaid decisions that
since the grievance of the members of the said Association were
never aggrieved, they ought not to have filed writ petition as
any legal right, if any, were never infringed and the instant writ
WP(C).No.11964 OF 2015(S)
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petition ought not to be maintained."
(Emphasis supplied)
(viii) In Meghalaya Wine Dealers Association and Ors. v. State of
Meghalaya and Ors. reported in 2010 (2) GLT 673, the High Court of
Gauhati held as follows:
"8....................Now, the question before us, whether such an
unregistered association can be a legal person to bring an
action under Article 226 of the Constitution. The fact that the
petitioners' association still remains an unregistered
association can be located/spotted from Annexure 1 to the
counter affidavit filed by respondent Nos. 1 to 3. Annexure 1 is a
communication of the Registrar of Societies, Meghalaya,
Shillong dated 22.11.2009 addressed to the Commissioner of
Excise, Meghalaya, Shillong wherein it has been
stated/indicated that for want of certain documents as
indicated therein at Sl. No. 1 to 3, "Shillong Wine Dealers
Association" could not be registered as "Meghalaya Wine
Dealers Association" as desired by the applicant. This
communication goes to show that though an application was
made for alteration of the name and for registration, the
Registrar of Societies, Meghalaya, Shillong was unable to
register the society for want of documents in the altered name,
namely, "Meghalaya Wine Dealers Association", therefore,
apparently, "Meghalaya Wine Dealers Association" remained
unregistered till date and it cannot file a writ petition under
Article 226 of the Constitution challenging the vires of the
amended rules and the new rule of the amended Rules.
9......................Now the question, before us is whether the
petitioner, "Meghalaya Wine Dealers Association" can assumed
the character of either a juristic person or legal person without
registration and can bring the writ petition challenging the
vires of the amended and new rules. "Meghalaya Wine Dealers
Association" is an association of the licensees who obtained
such licences for running liquor business in the State of
Meghalaya. Each individual licence holder if is aggrieved by any
action of the Government or the respondent authorities can
bring an action under Article 226 of the Constitution but
WP(C).No.11964 OF 2015(S)
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individual licence holder cannot file writ petition for each and
every licence holder unless they form an association and such
association is registered. When the association is registered
under the relevant Act such association assumes the character
of a juristic person or a legal person which may sue or may be
sued. This "Meghalaya Wine Dealers Association" admittedly
being not a registered society under the Meghalaya Societies
Registration Act, it cannot file writ petition against the
respondents seeking relief as indicated in the writ petition and
in that situation the writ petition so filed by such unregistered
association would be not maintainable.
11. The issue whether unincorporated association even if
recognized by the Government according to the Central
Services (Recognition of Service Association) Rules, 1959 can
bring an action or in other words file a writ petition under
Article 226 of the Constitution is answered in the case between
Director General Ordnance Factories Employees'
Association v. Union of India and Director General
Ordnance Factories AIR 1969 Cal. 149. Learned Judge of the
Calcutta High Court while rendering the judgment in the case
(supra) in paragraph 6 to 9 answered the issue as under:
"6. Before entering into the merits of the petition,
it is necessary to dispose of the preliminary objection
taken on behalf of the respondent 3, namely, that the
Petitioner, being an unincorporated association, cannot
maintain an application under Article 226 and that the
grievance, if any, of its members should be agitated in
appropriate proceedings brought by them in their
individual capacity.
9. In the case of a body incorporated by law, the
corporate body acquires a legal personality of itself and
is as such entitled to maintain legal proceedings. But an
unincorporated association has no legal personality and
it is nothing but an aggregation of its members who can
only bring legal proceedings in their individual capacity.
Even when all of them are affected by an official act, they
can challenge that only if all the members join in the
proceedings by name, the association, in such a case,
cannot maintain an application under Article 226 or
other legal proceeding in its own name, as has been
WP(C).No.11964 OF 2015(S)
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established by a number of decisions. (Indian Sugar Mills
Assocn. v. Secy. to Government U.P. Labour Dept. AIR 1951 ALL
1 (FB); General Secy. Eastern Zone Insurance Employees'
Assocn. v. Zonal Manager, Eastern Zone Life Insurance
Corporation AIR 1962 Cal 45) and Registration Act cannot
confer this right. (Bangalore District Hotel Owners'
Association v. District Magistrate, Bangalore AIR 1951 Mys.
14)."
3. A Division Bench of this court in a writ petition filed by Prathyasa
Mental Health Counselling Forum against the State of Kerala and others, by
judgment dated 19.6.2020 held that Public Interest writ petitions filed by an
unregistered body is not maintainable. In the light of the above decisions, we
are of the view that instant writ petition filed as Public Interest Litigation by an
unregistered body viz., 'Mulavukad Residents All Party United Association' is
not maintainable. However, taking note of the interest exposed by the
petitioner, we direct the respondents to ensure adequate number of doctors
and other para-medical staff in the Government hospital at Mulavukad.
Writ petition is disposed of.
SD/-
S.MANIKUMAR
CHIEF JUSTICE
SD/-
SHAJI P. CHALY
JUDGE
jes
WP(C).No.11964 OF 2015(S)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 PHOTOGRAPH SHOWING THE HOSPITAL BUILDING CONSTRUCTED BY
THE 5TH RESPONDENT GIDA.
EXHIBIT P2 PHOTOGRAPH SHOWING INSIDE THE HOSPITAL WITH BEDS
DISCARDED INSIDE THE HOSPITAL.
EXHIBIT P3 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER'S
ORGANIZATION DATED 22.12.2014 BEFORE THE 1ST RESPONDENT.
EXHIBIT P3(a) ETRUE ENGLIGH TRANSLATION OF EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF JUDGMENT OF THE HON'BLE SUPREME COURT ON
28.8.1989 IN PANDIT PARMANAND KATARA V.UNION OF INDIA &
OTHERS REPORTED IN 1989 (4) SCC 286.
EXHIBIT P5 PHOTOGRAPH SHOWING THE PATIENTS QUEUING UP BEFORE THE
DOCTOR IN THE MULAVUKAD GOVERNMENT HOSPITAL.
// TRUE COPY //
P.S. TO JUDGE
