Kerala High Court
The Meenachilar Punarjani ... vs State Of Kerala on 20 July, 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
TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
WP(C) NO. 14328 OF 2016
PETITIONER/S:
THE MEENACHILAR PUNARJANI KARMASAMITHI
REPRESENTED BY ITS SECRETARY, PALA P.O.,
KOTTAYAM DISTRICT,PIN 686575.
BY ADV SRI.GEORGEKUTTY MATHEW
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN
695014.
2 THE DISTRRICT COLLECTOR KOTTAYAM
COLLECTORATE P.O., KOTTAYAM-686002.
3 THE DEPUTY DIRECTOR OF SURVEY
KOTTAYAM, COLLECTORATE P.O.,KOTTAYAM-686002.
4 THE REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, PALAI P.O.,PIN 686575.
5 THE TALUK SURVEYOR
OFFICE OF TALUK SURVEYOR, PALAI P.O.,PIN 686575.
6 THE ERATTUPETTA MUNICIPALITY
REPRESENTED BY ITS SECRETARY,ERATTUPETTA P.O.,
KOTTAYAM DISTRICT,PIN 686121.
7 THE PALAI MUNICIPALITY
REPRESENTED BY ITS SECRETARY,PALAI P.O.,
KOTTAYAM DISTRICT,PIN 686575.
W.P(C).14328/2016
2
8 THE KOTTAYAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY,KOTTAYAM P.O.,
KOTTAYAM DISTRICT,PIN 686001.
9 THE MUTHOLY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,MUTHOLY P.O.,
KOTTAYAM DISTRICT,PIN 686597.
BY ADVS.
SR.GOVERNMENT PLEADER SRI. SURIN GEORGE IPE R1-5
SRI.SUNIL CYRIAC,SC,MUTHOLY GRAMA PANCH
SRI.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY
SHRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C).14328/2016
3
JUDGMENT
Dated this the 20th day of July, 2021
S. Manikumar, CJ.
Instant public interest litigation is filed for the following reliefs:
i) Issue a writ of mandamus directing the respondents 1 to 3 to
take immediate steps to survey and to demarcate the actual
boundaries of the 'Meenachil' river in the light of revenue
records and to ensure that there is no encroachment in to the
`Meenachil' river and its riverbanks.
ii) Issue a writ of mandamus directing the respondents 6 to 9 to
give due priority for the protection of Meenachil river and
prevention of pollution to the Meenachil river while distributing
their plan funds, in the interest of justice.
2. Short facts leading to filing of the writ petition are as
hereunder:
Petitioner is an organization formed by a group of persons interested to
safeguard "Meenachil" river and to protect the same from
encroachments by adjacent land owners and from Government, who are
duty bound to protect it and also from all kinds of pollutions and to
rejuvenate to its past glory.
3. It is submitted that a request was made to the 2 nd respondent
District Collector and 3rd respondent, Survey Deputy Director to conduct
survey and to re-fix boundaries of the Meenachil river in the light of
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revenue records and to evict encroachment if any. The 3 rd respondent
issued Exhibit P2 reply demanding the petitioner to approach the Taluk
offices and complete the survey by paying the expense from the pocket
of the petitioner. According to the petitioner, this is highly illegal. It is the
duty of the respondents herein to conduct survey and fix boundaries of
the river and preserve it from all kinds of encroachments. In the light of
Ext.P2, the petitioner submitted Ext.P3 application before the 1 st
respondent praying to issue necessary orders for conducting survey of
Meenachil river and fixation of boundaries of its river banks.
4. It is further submitted that, from Ext.P4 it is evident that the
water of Meenachil river is highly polluted and unfit for of usage by the
people. Though it is the primary duty of the respondent Local Self
Government Institutions, to protect the river and keep it clean from
pollutions, adequate funds are not provided in the plan funds. The
protection of river and water sources are fundamental duties comes
under article 51A (g) of the constitution. Hence, it is prayed that an
urgent interference by this Hon'ble court is necessary.
5. Grounds on which instant writ petition has been filed are
extracted hereunder:
A. Exhibit.P2 issued by 3rd respondent is highly arbitrary and
illegal. What was requested is only to comply with the statutory
duties of the Survey Department. Instead, the 3 rd respondent
demanded fees from the petitioner which is highly illegal. If
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permission from Government is required for doing the survey,
respondents Nos.2 and 3 would have forwarded application to
the 1st respondent. In the light of Exhibit P2 the petitioner
submitted Exhibit P4 application before the 1 st respondent. The
1st respondent is duty bound to order survey of Meenachil river
and its river banks.
B. The Exhibit P4 results proves that the water in Meenachil
river is highly polluted. In the light of Section 218 of the Kerala
Panchayath Raj Act and Section 208 (A) of Kerala
Municipalities Act, the Meenchil river is vested with respective
Local Self Government Institutions. As per schedule 3 under
Sub Section (1) of Section 166 of the Kerala Panchayath Raj
Act and 1st Schedule under Section 30(A) of the Kerala
Municipalities Act, it is the mandatory functions of respondents
No. 6 to 9 to protect, conserve and maintain hygiene of
Meenachil river. But no steps were taken by the Local Self
Government Institutions to preserve Meenachil river from all
kinds of pollution.
C. Adequate plan fund amounts are not provided by the Local
Self Government Institutions for the protection of river. In fact
these respondents are not complying with their primary duties
of pollution management and environmental protection. The
protection of river and water sources are fundamental duties
comes under Article 51A (g) of the constitution. The
respondents are duty bound to keep the river for free and
imbedded use of the general public. The inactions on the part
of the respondents in demarcating the boundaries of
'Meenachil' river and not preventing encroachments to the river
banks amount to breach of public trust.
6. First of all, writ petition has been filed by 'Meenachilar
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Punarjani Karmasamithi'. There is no material to indicate that the above
body of persons is a registered body. This Court, in 'Justitia'
represented by its Secretary Faizal P. Vs. State of Kerala represented
by Chief Secretary and Another, in W.P(C).No.36372 of 2017 dated
2.7.2020, held as follows:
"3. First of all, there are no materials indicating that
'Justitia' represented by its Secretary is a registered
association. Earlier in W.P(C). No.11686 of 2020 dated
19.6.2020, this Court held that unregistered body has no
locus to file writ petition. Relevant paragraphs are
extracted below :
"(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 3rd 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
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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 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.
W.P(C).14328/2016
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 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
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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 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
W.P(C).14328/2016
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 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
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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 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
W.P(C).14328/2016
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. 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.
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(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 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.
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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 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 Guwahati 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
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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 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
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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 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)."
W.P(C).14328/2016
13. Said judgments have laid down the principles of law
in public interest writ petitions. In the light of the decisions of the
Courts in India, on the law of precedents, with due respect,
Guruvayur Devaswom Managing Committee's case (cited supra)
cannot be said to have laid down a law on the issue of
maintainability of a Public Interest Litigation or even a writ
petition by an unregistered body. Even in Swaraj Abhiyan's case
(cited supra), there was no specific issue as to whether an
unregistered body can maintain a writ petition or not. Reliance on
Swaraj Abhiyan's case (cited supra) would not support the
petitioner. 'Person' refers to human being. 'Jurstic person' refers
to a body recognized by the law as being entitled to rights and
duties in the same way as a natural or human person. In the
case on hand, Prathyasa Mental Health Counselling forum,
through its Programme Co-ordinator, an unregistered body does
not fall within the definition of juristic person.
14. On an analysis of law relating to precedents, binding
effect of interim orders and maintainability of filing a writ petition by
an unregistered body, and the facts and circumstances of this
case, we are of the view that instant writ petition filed as Public
Interest Litigation by an unregistered body viz., Prathyasa Mental
Health Counselling forum, through its Programme Co-ordinator, is
not maintainable. Writ petition fails and accordingly, dismissed. No
costs."
7. That apart, the Secretary of Pala Municipality (respondent
No.7) has filed a counter affidavit, the relevant portions of which are
extracted hereunder:
4. The 7th respondent is very proactive and has always been
taking preventive steps to protect the 'Meenachil' river and
W.P(C).14328/2016
'Lalam' canal from pollution. The Pala municipality does not
tolerate any sort of pollution and has imposed a fine of
Rs.10,000/- against two institutions recently for dumping waste
in to the river. The Municipality has appointed staffs and
provided them with vehicles for search and preventing dumping
of waste in to the river during night hours. The municipality
regularly cleans two sides of the river and canal by using the
municipal workers and rural employment guarantee workers.
The municipality has even planted trees on both sides of the
river with an aim to protect the river and is also very keen in
organising awareness campaigns about waste disposal and
cleanliness through various groups such as Kudumbasree,
residential association etc.
8. Kottayam Municipality (respondent No.8) has filed a counter
affidavit, the relevant portions of which are extracted hereunder:
4. It is respectfully submitted that Meenachil river passes
around six kilometers within the limits of Kottayam municipality.
It is respectfully submitted that Kottayam municipality had
already taken various steps to prevent the mixing of
contaminated water into Meenachil river. There are several
drainages, canals and thodus which drains rain water into the
river. It was noticed by municipality that contaminated water is
also getting mixed with the rain water at many points illegally.
Hence municipality had already issued notices to various
residential house owners and institutions which connect their
drainage pipes to the aforesaid water channels which joins the
river at various points for closing or dismantling the drainage
pipe lines and further steps are also being taken. Some were
already closed also.
W.P(C).14328/2016
5. On the basis of complaints received by municipality that at
Nagampadom, railway authorities are draining their waste
water including the waste water after washing of the railway
track was being drained through a drainage into the river, the
Health Inspectors and Junior Health Inspectors of Kottayam
Municipality had conducted a site inspection and found that the
complaint raised was correct. In furtherance of the follow up
actions taken by Kottayam Municipality, the railway authorities
had installed a waste treatment plant for treating their waste
water. Apart from that, whenever complaints are received, the
municipal authorities had taken all earnest actions in order to
avoid water pollution in all possible manners. The Health
Department of Kottayam Municipality also gives all necessary
directions and advices when required.
6. It is respectfully submitted that apart from municipality had
already reported for plan funds in order to construct a waste
water treatment plant at Nagampadom itself where a big
drainage joins the river to government and the funds are learnt
to be made available shortly by including the same in the
project by government. Apart from that it is respectfully
submitted that the 8th respondent is ready and willing to do
anything which are supposed to be done by it legally in order to
curb water pollution in Meenachil river. All contra allegations
made in the writ petition are all false and hence denied
specifically. They are all made by the petitioner solely for the
purpose of this writ petition alone without any basis at all .
9. From the counter affidavits of the above respondents, it could
be deduced that steps have been taken addressing the reliefs sought
for.
W.P(C).14328/2016
10. Protection of river and other water sources are the
fundamental duties of the State as well as the concerned local bodies,
to whom they are vested with. Having regard to the obligation of the
State as well as the local bodies to maintain purity of river water and to
avoid all kinds of pollution, we hereby direct the respondents to take
steps for removal of encroachment, if any, in accordance with law and
also to ensure and maintain purity of water. Periodical inspections,
once in three months, to be conducted by the authorities of the State
and local bodies for implementation of the directions issued, and that
accordingly a report be submitted to the District Collector, Kottayam
District.
Writ petition is disposed of accordingly.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
W.P(C).14328/2016
APPENDIX OF WP(C) 14328/2016
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE REGISTRATION
CERTIFICATE OF THE PETITIONER SOCIETY
DATED 12.06.2014, ALONG WITH TRUE
ENGLISH TRANSLATION.
EXHIBIT-P2: TRUE COPY OF THE LETTER DATED
18/03/2015 ISSUED BY THE 3RD
RESPONDENT, ALONG WITH TRUE ENGLISH
TRANSLATION.
EXHIBIT-P3: TRUE COPY OF THE APPLICATION DATED
04/12/2015 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT, ALONG WITH
TRUE ENGLISH TRANSLATION.
EXHIBIT-P4: TRUE COPY OF THE CERTIFICATE OF
RESULTS DATED 04/04/2014.
