Wp/6009/2005 Of M/S. A.p. Wine Dealers Association v. The Dy. Director Of Income Tax ( Investigation)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTEENTH DAY OF APRILTWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANAWRIT PETITION NO : 6009 of 2005 Between: 1. M/s. A.P. Wine Dealers Association, C-4, Matrusri Apartments,Hyderguda, Hyderabad-29,Represented by its General Secretary,Sri D.Venkateshwar RaoS/o.Sri D.V. Krishna RaoAged 51 years. 2. M/s.Twin Cities Wine Merchants Association, C-4, Matrusri Apartments, Hyderguda, Hyderabad-29,Represented by its PresidentSri D.Venkateswara Rao,S/o. Sri D.V. Krishna RaoAged 51 years 3. Sri Pentala Ramesh Babu s/o. Sri Bolla Rao, aged 30 years, R/o. Krishnalanka, Gampalgudem, Vijayawada. 4. Sri Aravapalli Laxminarayana s/o. Sri Gandhi, aged 30 years,R/o. Mailavaram Village, Krishna District. ..... PETITIONERS AND 1. The Deputy Director of Income-Tax (Investigation), Unit-1(2), Hyderabad, 4[th] Floor, Annex Building,Aayakar Bhavan, Hyderabad-500004. 2. The Commissioner of Prohibition & Excise,Government of Andhra Pradesh, Hyderabad. 3. The Superintendent of Prohibition & Excise,Hyderabad, Prohibition & excise Building, 5[th] Floor, M.J. Road, Hyderabad. 4. The Prohibition & Excise Superintendent,Srikakulam, Srikakulam District. 5. The Prohibition & Excise Superintendent,Vijayanagaram, Vijayanagaram District. 6. The Prohibition & Excise Superintendent,Vizag, Visakhapatnam District. 7. The Prohibition & Excise Superintendent,Kakinada, East Godavari District. 8. The Prohibition & Excise Superintendent, Eluru, West Godavari District. 9. The Prohibition & Excise Superintendent,Machilipatnam, Krishna District. 10. The Prohibition & Excise Superintendent,Guntur, Guntur District. 11. The Prohibition & Excise Superintendent,Ongole, Prakasham District. 12. The Prohibition & Excise Superintendent,Nellore, Nellore District. 13. The Prohibition & Excise Superintendent,Chittur, Chittur District. 14. The Prohibition & Excise Superintendent,Kadapa, Kadapa District. 15. The Prohibition & Excise Superintendent,Ananthapur, Ananthapur District. 16. The Prohibition & Excise Superintendent,Kurnool, Kurnool District. 17. The Prohibition & Excise Superintendent,Karimnagar, Karimnagar District. 18. The Prohibition & Excise Superintendent,Mahaboobnagar, Mahaboobnagar District. 19. The Prohibition & Excise Superintendent,Khammam, Khammam District. 20. The Prohibition & Excise Superintendent,Warangal, Warangal District. 21. The Prohibition & Excise Superintendent,Nizamabad, Nizamabad District. 22. The Prohibition & Excise Superintendent, Sangareddy, Medak District. 23. The Prohibition & Excise Superintendent, Ranga Reddy District. 24. The Prohibition & Excise Superintendent, Hyderabad, Hyderabad District. 25. The Prohibition & Excise Superintendent, Nalgonda, Nalgonda District. 26. The Prohibition & Excise Superintendent, Adilabad, Adilabad District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtmay be pleased to issue a writ, direction or order especially in thenature of writ of mandamus declaring the action of the firstrespondent in calling upon the Superintendents of Excise andProhibition in the State of Andhra Pradesh to produce the demanddrafts submitted by various applicants within 24 hours of the deliveryof the judgment and the Hon’ble High Court of Andhra Pradesh nowpending writ appeals as illegal, arbitrary, and in excess of the powersconferred on the first Respondent under the provisions of Income taxAct, 1961 and consequently direct the Excise Superintendent torelease the original demand drafts to the various applicants withoutcomplying with the directions of the first respondent. Counsel for the Petitioner:MR.S.RAVI Counsel for the Respondent No.1 : MR.S.R.ASHOK Counsel for the Petitioner:MR.S.RAVI Counsel for the Respondent No.1 : MR.S.R.ASHOK Counsel for the Respondent Nos.2 to 26 : Advocate General The Court made the following : ORDER: (per P.S Narayana.,J) Facts in brief : 1 . An unprecedented novel situation arose in the State of AndhraPradesh due to the decisions of this Court holding certain portions ofthe Excise Policy of the State Government being bad ultimatelypaving the way for issuance of No.DDIT/U-1(2)/2004-05, dated 16-3-2005 whereunder the Superintendents of Prohibition and Excise ofthe State of Andhra Pradesh were called upon by the 1[st] respondent,evidently representing the Investigative Agency of the Income TaxDepartment, to produce all the demand drafts along with theapplications of the applicants within 24 hours of the delivery of theJudgment of this Court in pending Writ Petition in the mannerindicated in the said proceeding purporting to exercise such powerunder Section 131(1) and (1A) of the Income Tax Act 1961,hereinafter in short referred to as “Act” for the purpose ofconvenience. The said action is challenged by writ petitioners 1 to 4.The 1[st] petitioner is M/s. A.P. Wine Dealers Association, representedby its General Secretary, a registered Association, the 2[nd] petitioneris M/s. Twin Cities Wine Merchants Association, represented by itsPresident, an unregistered Association and yet another two viz., SriPentala Ramesh Babu and Sri Aravapalli Laxminarayana, who aresaid to be carrying on business as wine merchants. The 1[st]respondent is Deputy Director of Income Tax (Investigation), Unit1(2), Hyderabad. The 2[nd] respondent is the Commissioner of Prohibition & Excise, Government of Andhra Pradesh. Respondents3 to 26 are the Prohibition & Excise Superintendents in the State ofAndhra Pradesh representing different Districts. The relief prayed forin the Writ Petition is for a writ of mandamus declaring the action ofthe 1[st] respondent in calling upon the Superintendents of Excise andProhibition in the State of Andhra Pradesh to produce the demanddrafts submitted by various applicants within 24 hours of the deliveryof the judgment by this Court in the pending Writ Appeals, no doubt atpresent disposed of, as illegal, arbitrary and in excess of the powersconferred on the 1[st] respondent under the provisions of the Act andconsequently direct the Excise Superintendents to release theoriginal demand drafts to the various applicants without complyingwith the directions of the 1[st] respondent and to pass such othersuitable orders. 2. Submissions of Sri S.Ravi, Counsel for writ petitioners : Sri S.Ravi, the learned Counsel representing the writ petitionerswould maintain that the 1[st] petitioner is a registered Association whowould be ventilating the common cause and the common grievancesof the members of the Association and the 2[nd] petitioner is anunregistered Association whereas petitioners 3 and 4 are thepersons concerned with this wine business or trade. The learnedCounsel mainly concentrated his submissions on the aspect of the 2. Submissions of Sri S.Ravi, Counsel for writ petitioners : Sri S.Ravi, the learned Counsel representing the writ petitionerswould maintain that the 1[st] petitioner is a registered Association whowould be ventilating the common cause and the common grievancesof the members of the Association and the 2[nd] petitioner is anunregistered Association whereas petitioners 3 and 4 are thepersons concerned with this wine business or trade. The learnedCounsel mainly concentrated his submissions on the aspect of the power, authority or jurisdiction of the 1[st] respondent in issuing theimpugned proceeding calling upon different Excise and ProhibitionSuperintendents to submit the demand drafts aforesaid. The learnedCounsel while making elaborate submissions had drawn the attentionof this Court to the language employed in Section 131 of the Act andhad compared the language of Section 131 of the Act with thelanguage employed in Section 132 of the Act and had explained thescope and ambit of both the provisions and would contend that in thelight of the stand taken by the Income Tax Department that thesepowers had been exercised by the 1[st] respondent under Section131(1) and (1A) of the Act it can be safely concluded that this actionwould not be protected falling under the issuance of summons for thepurpose of Section 131 of the Act. The Counsel would submit that theInvestigative Agency is definitely at liberty to take action following theprocedure as specified by different provisions of the Act and notbeyond thereto and at any rate omnibus summons or directives to allthe Excise and Prohibition Superintendents of the State calling uponthem for the production of the original demand drafts and theapplications exercising powers under Section 131 of the Act isimpermissible under law. The learned Counsel also explained thedifferent expressions and the words and the language employed inthe provisions in this regard. The learned Counsel also wouldcomment that even otherwise the powers specified under Section 131(1) of the Act can be exercised only for the limited purpose asspecified under the Act as such and not otherwise. It is no doubt truethat each applicant has a right to get his demand draft back but onthat ground distinct Court fee need not be paid by each of suchapplicants since common cause or common grievance of theparticipants is being ventilated by the 1[st] petitioner. The mere fact thatthe 1[st] petitioner was unable to furnish the names as required by theIncome Tax Department would not alter the situation in any way. Atany rate, the Counsel would contend that in the light of the Rule 4-Aof the Writ Rules, inasmuch as the Writ Petition is based on thecommon cause of action of questioning the impugned proceeding,separate Court fee need not be paid. The learned Counsel alsofurther contended that the decisions dealing with this aspect and onwhich strong reliance is being placed, had never considered Rule 4-Aof the Writ Rules and hence the said decisions may not be applicablein the light of the specific Rule referred to supra. The learned Counselalso while further elaborating his submissions would contend thatdemand draft is virtually money and at any rate it would not fall underthe expression ‘document’ and even in this view of the matter Section131 of the Act is not applicable at all. On the aspect of locus standithe Counsel would maintain that the traditional view of locus standihad undergone a change and on that technical plea the rights of theparties cannot be defeated. The Counsel also in elaboration explained the meaning of ‘document’ and the meaning of ‘negotiableinstrument’ and the procedure of the Banking Department and theprocedure which would be adopted by the Excise Department andthe powers of the Income Tax Department in relation to the procedureof unearthing and detecting the real persons and the procedure to befollowed in this regard under the provisions of the Act. When thepower is non-existent under Section 131 of the Act, the power whichmay be available under Section 132 of the Act cannot be invoked forjustifying the action initiated since it is a non-existent power. Thelearned Counsel also placed strong reliance on the definition of‘money’ and the definition of ‘document’ in Random’s Dictionary. Thelearned Counsel also would maintain that a ‘demand draft’ is just akinto a ‘bank note’ except for some slight difference and the Counselalso made elaborate submissions on the aspect of the meaning of‘cheque’ and the meaning of ‘demand draft’ in the context of theBanking law. Ultimately the learned Counsel would conclude that atany rate under the guise of protecting the public exchequer or underthe guise that larger public interest is involved, when an actioninitiated by an authority like 1[st] respondent is totally withoutjurisdiction, such action may have to be held to be bad for lack ofpower and authority to exercise such power and hence the legalrights of the writ petitioners and the applicants cannot be defeated onsuch technical grounds of the plea of locus standi and the plea of non-furnishing of the details and the other like reasons. The Counselalso would maintain that when a prejudicial action is taken, theprofessional bodies representing the trade quite often would beespousing the cause and would be protecting the interests of themembers of such society or Association and hence the Writ Petitioncannot be thrown out on the ground of locus standi. The learnedCounsel also placed reliance on certain decisions to substantiate hissubmissions in this regard. 3. Submissions of Sri S.R. Ashok, Senior Counsel appearing onbehalf of the Income Tax Department : Sri S.R. Ashok, the learned Senior Counsel representing the IncomeTax Department raised a preliminary objection relating to the locusstandi of the writ petitioners to maintain the Writ Petition and themaintainability of the Writ Petition and also the objection relating tothe payment of Court fee. The learned Counsel would maintain that inthe light of the relief prayed for in the Writ Petition, the affectedapplicants are unknown and it is not known whether any members ofthe 1[st] petitioner Association had participated by making applicationsand by depositing the demand drafts and whether their legal rightsare infringed at all. The learned Counsel would maintain that thoughspecific request had been made, the Counsel representing the writ Sri S.R. Ashok, the learned Senior Counsel representing the IncomeTax Department raised a preliminary objection relating to the locusstandi of the writ petitioners to maintain the Writ Petition and themaintainability of the Writ Petition and also the objection relating tothe payment of Court fee. The learned Counsel would maintain that inthe light of the relief prayed for in the Writ Petition, the affectedapplicants are unknown and it is not known whether any members ofthe 1[st] petitioner Association had participated by making applicationsand by depositing the demand drafts and whether their legal rightsare infringed at all. The learned Counsel would maintain that thoughspecific request had been made, the Counsel representing the writ petitioners had not furnished the particulars of the members of the 1[st]petitioner Association and in the light of the same, the Associationcannot espouse the cause of such persons, the unknown applicants.The learned Counsel also would submit that at the best, themembership of the 1[st] petitioner Association may be 5000 or 6000and when 1,43,000 applicants made applications and deposited thedemand drafts, this Writ Petition in the light of the same, definitely isnot maintainable. Inasmuch as the particulars had not beenfurnished, adverse inference may have to be drawn. The Counselwould submit that it is not a common cause and separate Court feeneed to be paid and the Counsel placed reliance on certain decisionsto substantiate these contentions. The learned Counsel also wouldfurther submit that the State Government cannot take anyunreasonable stand in the light of Article 256 of the Constitution ofIndia. The learned Counsel would submit that this is a mode adoptedby the Investigative Agency of the Income Tax Department to unearththe real persons since the applicants prima faice on the materialwhich had been placed on record would be just name lenders orbenami. In the light of the same, in the interest of protecting publicexchequer, the Department had taken up this exercise and hadissued the impugned proceeding for the purpose of unearthing anddetecting the real persons in relation to the enormous monetarydealings involved in the form of demand drafts in the names of just several name lenders. The learned Counsel had demonstrated byproducing ample material to substantiate his stand in this regard tojustify the stand of the Income-tax Department in initiating suchaction. The learned Counsel made elaborate submissions on theaspect of locus standi and would submit that this is not a commoncause of action and the applicants, as aggrieved parties, havingindividual cause of action, may have to approach the Courtventilating their individual grievances. The learned Counsel alsowould maintain that this is not a public interest litigation and inasmuchas the writ petitioners approached the Court with oblique motive forextraneous considerations to lend a helping hand to dishonestpersons who are concealing their wealth, this Court cannot definitelyextend its helping hand. The Counsel also made elaboratesubmissions relating to the scope and ambit of Sections 131 and 132of the Act. The Counsel would maintain that too numerous personsare involved and in order to protect the exchequer which is neededsince large scale fraud is involved in the monetary transactions onlyfor the limited purpose these documents, demand drafts, were calledupon and even by furnishing photostat copies of the demand drafts,the same cannot be worked out and the learned Counsel explainedthe difficulties involved in relation to the same. The learned Counselalso had drawn the attention of this Court to several definitions of‘document’ and would contend that at the best this may fall under the escrow arrangement and made elaborate submissions in this regard.The Counsel made it very clear that this is not a case of seizurefalling under Section 132 and the Department is interested in settingthe Investigative Agency into motion while taking these documentsand looking into these documents for the purpose of unearthing thereal persons for the purpose of reaching at the real persons dealingwith the monetary transactions. The Counsel would maintain that ifthe crucial material is returned to the applicants, the investigationcannot be completed by the Income tax Department. The learnedCounsel had made elaborate submissions on the aspect of‘negotiable instrument’, the procedure involved in the bankingtransactions and also would maintain that writ petitioners are not clearwhether they had approached this Court by way of public interestlitigation or adversary litigation or whether it is benami litigation orprivate litigation. When the writ petitioners are not clear on their stand,the cause on behalf of 1,43,000 applicants who are non-parties andwho are not oppressed or depressed classes, the present reliefcannot be granted. The learned Counsel made elaboratesubmissions relating to the criminal investigation and how the Statemachinery would be acting in this regard and the Tax investigationand the role of the State Government and the role of the CentralGovernment to be played while enforcing the relevant statutoryprovisions in this field. The Counsel ultimately would conclude that the protection of the public exchequer is of paramount importance and the non-production of the demand drafts as directed by the 1[st]respondent at this stage would definitely jeopardize the interest of thepublic exchequer and hence the larger public interest may have to betaken into consideration and especially in the light of the fact that thewrit petitioners had not approached this Court with clean hands byconcealing the facts and by suppressing the facts and not furnishingall the particulars in the case, the relief prayed for definitely cannot begranted. Several decisions had been relied upon to substantiate hiscontentions. 4. Submissions of the learned Advocate General : The learned Advocate General representing the State Governmentwould take the stand that inasmuch as a large number of 1,43,000applicants are involved and there is procedure for the return of thedemand drafts, there is a problem to the law and order situation andin the light of the same an early decision may be delivered at thehands of this Court. The learned Advocate General however made itclear that the question of interpreting Article 256 of the Constitution ofIndia and the protections of Central Government and the StateGovernment in this regard and the extreme stand of the break downof the Constitutional machinery may not come into play at all for the reason that the specific stand of the State Government is that in thelight of the Excise Policy the applicants had submitted theapplications and the demand drafts had been deposited and in thelight of the decisions rendered by this Court the present novelsituation arose and absolutely the State Government has no role toplay and the State Government is not coming in the way of theIncome Tax Department and its Investigative Agency in taking suchsteps which are permissible in law under the provisions of the Act.Further, the learned Advocate General would submit that taking theover-all facts and circumstances it would be just and proper todispose of the matter at an early date. 5. Locus standi of the writ petitioners and the maintainability ofthe Writ Petition : While dealing with the aspect of locus standione of us(P.S.Narayana,J) in the “Law of Writs”, 3[rd] Edition, at page 381,commented : 5. Locus standi of the writ petitioners and the maintainability ofthe Writ Petition : While dealing with the aspect of locus standione of us(P.S.Narayana,J) in the “Law of Writs”, 3[rd] Edition, at page 381,commented : “The term locus standi can be understood as legal capacity tochallenge an act, an order or decision. This is one of the mostvexed questions of administrative law. Where a party who hasno locus standi files a petition it need not be heard on merits.The concept of locus standi is being liberalized and the scopeof the concept is being expanded day to day”. Thus, the traditional view relating to the concept of locus standi had undergone a sea change by different judicial pronouncements. The undernoted decisions may be usefully referred to in this context : D.Satyanarayana Vs. N.T. Rama Rao S.P. Gupta Vs. Union of India K.Ramadas Shenoy Vs. Chief Officers, Town MunicipalCouncil, UdipiCouncil, Udipi Municipal Council Vs. Vardichan As per the material available on record, it is clear that there are1,43,000 applicants who made applications and deposited thedemand drafts with the concerned Superintendents of Excise andProhibition. It is not as though the particulars relating to thoseapplicants who had obtained the demand drafts are not available atall and such particulars are available with the State Government andalso with the concerned Banking Institutions upto some extent.Lengthy submissions were made by the learned Senior Counselrepresenting the Income Tax Department that inasmuch as everyindividual applicant has a right to get return of his demand draft, it isan individual cause of action and hence the individual Court fee ispayable and on this ground itself the merits of the Writ Petition neednot be considered.In this context, it may be very relevant to noteRule 4-A of the Writ Rules which reads as hereunder : “Two or more persons having a common cause of action mayjoin in a single Writ Petition paying a single set of Court fee”. I n Ch. Raji Reddy and others Vs. APSRTC, Secunderabad a learned single Judge of this Court at para-2 observed : “The respondents have issued a notification which is publishedin local news papers on 31[st] March, 1997. This notification hasbeen challenged by all the petitioners. Therefore, the learnedCounsel for the petitioner submits that since same notificationhas been challenged by them they have a common cause ofaction and therefore can join as petitioners and are also liableto pay only one set of Court fee. Different judgments havebeen referred to during the hearing. One of the judgmentsrelied by the learned Counsel for the petitioner is a recentjudgment of this Court in M.Thirupathi Reddy Vs. A.P. Co-op.Oilseeds Growers’ Federation Ltd (2000(4) ALD 1), in whichcertain petitioners had joined together and had paid only oneset of Court fee. Those petitioners had been transferred by asingle order and the Court while disposing of the objection withregard to the Court fee held: “There is no merit on the contention of the learnedStanding Counsel for the APOILFED that a single WritPetition on behalf of 21 employees is not maintainable,and each petitioner shall pay a separate set of Court fee.It is relevant to note that the cause of action to file the WritPetition as regards all the petitioners is common. Thecause of action is the refusal of the Management ofAPOILFED to treat the petitioners as its employees. Sincethe Writ Petition is grounded on a common cause ofaction and since common relief is sought by all thepetitioners, a single set of Court fee on behalf of thepetitioners is sufficient.” “There is no merit on the contention of the learnedStanding Counsel for the APOILFED that a single WritPetition on behalf of 21 employees is not maintainable,and each petitioner shall pay a separate set of Court fee.It is relevant to note that the cause of action to file the WritPetition as regards all the petitioners is common. Thecause of action is the refusal of the Management ofAPOILFED to treat the petitioners as its employees. Sincethe Writ Petition is grounded on a common cause ofaction and since common relief is sought by all thepetitioners, a single set of Court fee on behalf of thepetitioners is sufficient.” But, it appears that a Division Bench judgment of this Courtwas not shown to the Court at the time of hearing of the matter.The Division Bench of this Court in G.Kondaiah Vs. A.P.Individual petitioner to pay Court fee unless juralrelationship is established (1985(3) APLJ 376). The Courtwas relying on a judgment of the Supreme Court reported inMota Singh Vs. State of Haryana (AIR 1981 S.C. 484). Thematter is no longer res integra and the Supreme Court hasheld it in clear terms as to in which cases several petitionersjoining together will have to pay one Court fee or individualCourt fee. In the matter before the Supreme Court,independent truck operators had filed a Writ Petition againstliability to pay tax under a particular order. Although the same action of the State had been challenged but the SupremeCourt found : “It is too much to expect that different truck owners havingno relation with each other either as partners or any otherlegally subsisting jural relationship of association ofpersons would be liable to pay only one set of Court feesimply because they have joined as petitioners in onepetition. Each one has his own cause of action arising outof the liability to pay tax individually and the petition ofeach one would be a separate and independent petitionand each such person would be liable to pay legallypayable Court fee on his petition. It would be a travesty oflaw if one were to hold that as each one uses high way,he has common cause of action with rest of truck pliers”. In the present case, may be all the petitioners are aggrieved ofthe impugned notice but all of them have a separate anddistinct cause of action against such notice. Thereforefollowing the Supreme Court judgment I hold that, unless thepetitioners in between themselves have a jural relationshipeven if they challenge the same order it will not amount tohaving same cause of action. The impugned order may be onebut cause of action of the petitioners definitely is separate ofeach other. One’s cause of action is not dependent onanother’s cause of action.” 6. The writ petitioners had filed the present Writ Petition and thedetails relating thereto had been already specified supra. Theimpugned action is the direction of the 1[st] respondent calling fordemand drafts from the concerned Superintendents of Excise andProhibition. In pursuance of the changed Excise Policy of the StateGovernment, which no doubt had been held to be invalid as referredto supra, the individual applicants made applications and alsodeposited the demand drafts. Thus it is a common action and acommon cause wherein the public at large, the intending participants, 6. The writ petitioners had filed the present Writ Petition and thedetails relating thereto had been already specified supra. Theimpugned action is the direction of the 1[st] respondent calling fordemand drafts from the concerned Superintendents of Excise andProhibition. In pursuance of the changed Excise Policy of the StateGovernment, which no doubt had been held to be invalid as referredto supra, the individual applicants made applications and alsodeposited the demand drafts. Thus it is a common action and acommon cause wherein the public at large, the intending participants, participated in pursuance of the aforesaid Excise Policy of the StateGovernment. The said action being one and common, if theimpugned action is held to be bad or illegal, or without authority orjurisdiction, the derivative beneficiaries may be numerous, buthowever in the light of the clear language employed in Rule 4-A of theRules referred to supra, this may not alter the situation in any way.Apart from this aspect of the matter, in the decisions referred to supra,Rule 4-A of the Rules had not been referred to nor a decision hadbeen rendered considering the language employed in the aforesaidRule. Inasmuch as it is a common cause of action, especially in thelight of the impugned proceeding which had been questioned beingcommon, this objection that the individual Court fee is payable byeach applicant cannot be sustained. I n A.P. Arrack ContractorsAssociation Vs. Government of A.P. a learned single Judgeobserved at para 10 as hereunder : “In the case of a Body incorporated by law, the CorporateBody acquires by law a legal entity or a legal personality ofitself and by reason thereof is entitled to sue and be sued in itsown name. But an un-incorporated association has no suchlegal personality or entity. It is nothing but an aggregation of itsmembers who can only bring legal proceedings in theirindividual capacity. Even when all of them are affected by anofficial act, they can challenge the same only if all membersjoin in the proceedings by name. The Association, in such acase, cannot maintain an application under Article 226 of theConstitution of India or other legal proceedings in its ownname. Even where an Association is permitted by law to bringa legal proceeding, it can do so only when its right as acollective body as distinguished from the aggregate rights of itsmembers are affected by the act impugned or challenged inthe proceedings. This is because an incorporated or registered society or association has a distinct legal personality of its ownwith rights and capacities, duties and obligations separate fromthose of its individual members. It must, however, be clarifiedthat there are certain exceptions to the above principles byvirtue of special enactments themselves which enable orentitle such incorporated societies, registered unions orincorporated associations to maintain action including filing ofapplications under Article 226 of the Constitution of India. Toenumerate a few, Toddy Tappers Coop. Societies which byvirtue of the Excise Policy are themselves licensees. Likewise,Fishermen Co-operative Societies and similar such societieswho manage the affairs and business of the society on behalfof its members either as licensees or by statutory provisions.Another class is the registered trade unions and associationsof workmen under the Individual Disputes Act.” It is true that the learned Senior Counsel representing the IncomeTax Department made a serious attempt to get the particulars of themembers of the 1[st] petitioner Association and a notice in fact hadbeen served and an affidavit in relation thereto also had been filedbefore this Court. Evidently, the particulars of the members of the 1[st]petitioner-Association had not been furnished for the reason that allthese applicants are not the members of the said Association andmay be certain of them may be the members. But however, there isno clear picture before this Court. Submissions in elaboration hadbeen made that because of the non-furnishing of these particulars,serious prejudice is caused to the Income Tax Department to takeany specific stand and even in this view of the matter, the WritPetition cannot be maintained. I n Calcutta Gas Company(Proprietary) Ltd. Vs. State of West Bengal it was held that the right that can be enforced under Article 226 of the Constitution of Indiashall ordinarily be the personal and the individual right to thepetitioner himself though in the case of some of the writs like habeascorpus o r quo warranto this rule may be relaxed or modified. In Bombay Dyeing & Manufacturing Co. Vs. State of Bombay it was held by the Apex Court at para-28 : “It is then argued that this is an objection open only to theemployees, and that the appellant can make no grievance of it.It is no doubt true that a question as to the constitutionality of astatute can be raised only by a person who is aggrieved by it;but here, the statute deals with rights arising out of contract,and that presupposes the existence of at least two parties withmutual rights and obligations, and it is difficult to see how whenthe rights of one party to it are interfered with, those of the othercan remain unaffected by it. Let us assume that the appellantmakes a payment to the Board under S. 3 (1) of the impugnedAct on the footing that the law is not unconstitutional as againsthim. What is there to prevent the employee from suing torecover the same amount from the appellant on the groundthat the Act is unconstitutional ? It will be no answer to thatclaim to plead that the appellant has already paid the amountto the Board. The fact is that a statute which operates on acontract must affect the rights of all the parties to the contract,and if it is bad as regards one of them, it should be held to bebad as regards the others as well. It is unnecessary to pursuethis question further, as we have held that the Act isunconstitutional even as regards the appellant.” I n Bharatiya Homoeopathy College Vs. Students Council, H.M. College, Jaipur it was held at paras 24 and 25 as hereunder : “The learned single Judge who originally dismissed the Writpetition had reason to doubt the locus standi of the StudentsCouncil of the Junior College to file this so called public interestlitigation. These students are studying for the same B. H. M. S.course of the University of Rajasthan. There can be somedoubt about their bona fides in challenging the order permittingother students of other colleges to appear for the sameexamination. What is more relevant, there is no basis foralleging any harm to public interest in allowing the students of the two appellant colleges to appear for the B. H. M. S.examinations of the University of Rajasthan. The Universitywhich had inspected these two appellant colleges andconsidered the course of studies which they offered, was in afar better position to decide whether the students who hadstudied for the earlier course were fit enough to be allowed toappear for the examinations of the University of Rajasthan.The decision which was taken by the University was a bonafide decision after taking into account the standard of teachingoffered by the two appellant colleges. The action was alsosupported by the State Government. The Central Council ofHomoeopathy has also recognised these two colleges. Thepublic interest was not in any manner adversely affected bythe impugned decision. the two appellant colleges to appear for the B. H. M. S.examinations of the University of Rajasthan. The Universitywhich had inspected these two appellant colleges andconsidered the course of studies which they offered, was in afar better position to decide whether the students who hadstudied for the earlier course were fit enough to be allowed toappear for the examinations of the University of Rajasthan.The decision which was taken by the University was a bonafide decision after taking into account the standard of teachingoffered by the two appellant colleges. The action was alsosupported by the State Government. The Central Council ofHomoeopathy has also recognised these two colleges. Thepublic interest was not in any manner adversely affected bythe impugned decision. The Students Council has now filed an affidavit disclosing itsstatus and its constitution. It does not disclose whether theCouncil was authorised to file the present litigation, and if so,by whom; whether it has the funds to indulge in this litigationand whether it had the backing of a majority of its members forthis litigation. Since on merits also we find that the action mustfail, we are not examining these questions any further exceptfor the purpose of indicating that such organisations, withoutdisclosing any material regarding their nature and functionsand funding, should not be allowed lightly to undertakelitigation in the name of public interest which can cause a lot ofdamage to others. In the present case, because of the litigation the studentshave not been able to complete their B. H. M. S. course for anumber of years. Pursuant to the interim order these studentshave been permitted to appear for examinations conducted inDecember, 1996 and the results have also been declared. Wedirect that in accordance with the results so declared thestudents may be allowed to continue/complete the B. H. M. S.course with the University of Rajasthan in accordance with lawand those who have qualified for the B. H. M. S. degree as perthese results be granted the degree by the University ofRajasthan.” 7. Further submissions had been made by the learned Senior Counsel representing the Income Tax Department that the nature of the litigation itself is not clear, whether it is a public interest litigation,benami litigation, individual litigation, adversary litigation, and in the absence of particulars and also in the absence of a clear standrelating to the nature of the litigation, the relief prayed in the WritPetition cannot be granted and on this ground also the Writ Petitionmay have to be thrown out. In Mahesh Chand Bisht Vs. Union ofIndia , in a public interest litigation, the Apex Court directed thepetitioners to file affidavit with full particulars of their concern andpurpose and also observed that then the maintainability etc., may beconsidered. In Janata Dal Vs. H.S. Chowdhary it was held at paras 63 to 68 as hereunder : “The traditional syntax of law in regard to locus standi for aspecific judicial redress, sought by an individual person ordeterminate class or identifiable group of persons, is availableonly to that person or class or group of persons who has orhave suffered a legal injury by reasons of violation of his ortheir legal right or a right legally protected, the invasion ofwhich gives rise to actionability within the categories of law. Ina private action, the litigation is bipolar; two opposed partiesare locked in a confrontational controversy which pertains tothe determination of the legal consequences of past eventsunlike in public action. The character of such litigation isessentially that of vindicating private rights, proceedings beingbrought by the persons in whom the right personally inhere ortheir legally constituted representatives who are thus obviouslymost competent to commence the litigation. In contrast, the strict rule of locus is standi applicable toprivate litigation is relaxed and a broad rule is evolved whichgives the right of locus standi to any member of the publicacting bona fide and having sufficient interest in instituting anaction for redressal of public wrong or public injury, but who isnot a mere busy body or a meddlesome interloper; since thedominant object of PIL is to ensure observance of theprovisions of the Constitution or the law which can be bestachieved to advance the cause of community ordisadvantaged groups and individuals or public interest bypermitting any person, having no personal gain or privatemotivation or any other oblique consideration but acting bonafide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in;motion like actio popularis of Roman Law whereby any citizen.could bring such an action in respect of a public delict It will be befitting to recall the observation of this Court inPeople's Union for Democratic Rights v. Union of India,(1982) 3 SCC 235 : 1982 SCC (L&S) 275, which reads thus : "But the traditional rule of standing which confinesaccess to the judicial process only to those to whom legalinjury is caused or legal wrong is done has now beenjettisoned by this Court and the narrow confines withinwhich the rule of standing was imprisoned for long yearsas a result of inheritance of the Anglo Saxon system ofjurisprudence have been broken and a new dimensionhas been given to the doctrine of locus standi which hasrevolutionised the whole concept of access to justice in away 'not known before to the western system ofjurisprudence... it is therefore necessary to evolve a newstrategy by relaxing this traditional rule of standing in orderthat justice may /become easily available to the lowly andthe lost". R. S. Pathak, J. (as the learned Chief Justice then was) whileagreeing with the directions proposed by Bhagwati, J. (as thelearned Chief Justice then was), in Bandhua Mukti Morcha v.Union of India, (1984) 3 SCC 161 expressed his view stating,"In public interest litigation, the role held by Court is moreassertive than in traditional actions." M. N. Venkatachaliah, J. speaking for the Bench in SheelaBarse V. Union of India, (1988) 4 SCC 226 has brought outthe distinction between private litigation and public interestlitigation in the following words : "In a public interest litigation, unlike traditional disputeresolution mechanism, there is no determination oradjudication of individual rights. While in the ordinaryconventional adjudications the party structure is merely bi-polar and the controversy pertains to the, determination ofthe legal consequences of past events and the remedy isessentially linked to and limited by the logic of the array ofthe parties, in a public interest action the proceedings, cutacross and transcend these traditional forms andinhibitions. The compulsion for the judicial innovation ofthe technique of a public interest action is theconstitutional promise of a social and economictransformation to usher in an egalitarian social order and awelfare State ... ... The dispute is not comparable to onebetween private parties with the result there is no recognition of the status of a dominus litis for anyindividual or group of individuals to determine the courseor destination of the proceedings, except to the extentrecognised and permitted by the Court. The "rights" ofthose who bring the action on behalf of the others mustnecessarily be subordinate to the "interests" of those forwhose benefit the action is brought. The grievance in apublic interest action, generally speaking, is about thecontent and conduct of government action in relation tothe constitutional or statutory rights of segments of societyand in certain circumstances the conduct of governmentpolicies. Necessarily, both the party structure and thematters in controversy are sprawling and amorphous, tobe defined and adjusted or readjusted as the case maybe, ad hoc, according as the exigencies of the emergingsituations. The proceedings do not partake ofpredetermined private law litigation models but areexogenously determined by variations of the theme." Though we have, in our country, recognised a departurefrom the strict rule of locus standi as applicable to a person inprivate action and broadened and liberalised the rule ofstanding and thereby permitted a member of the public, havingno personal gain or oblique motive to approach the Court forenforcement of the constitutional or legal rights of socially oreconomically disadvantaged persons who on account of theirpoverty or total ignorance of their fundamental rights areunable to enter the portals of the Courts for judicial redress, yetno precise and inflexible working definition has been evolvedin respect of locus standi of an individual seeking judicialremedy and various activities in the field of PIL. Probably,some reservation and diversity of approach to the philosophyof PIL among some of the Judges of this Court as reflectedfrom the various decisions of this Court, is one of the reasonsfor this Court finding it difficult to evolve a consistentjurisprudence in the field of PIL. True, in defining the rule oflocus standi no 'rigid litmus test' can be applied since thebroad contours of PIL are still developing apace seeminglywith divergent views on several aspects of the concept of thisnewly developed law and discovered Jurisdiction leading to arapid transformation of judicial activism with a far-reachingchange both in the nature and form of the judicial, process.” While dealing with the right of Contractors Welfare Association questioning the recovery towards rock recovery a learned single Judge in Bhagyanagar Contractors Welfare Hyderabad Vs. MD, M.W.S. & S.B., Hyderabad observed at para 12 as hereunder : “Lastly, I am of the considered view that BhagyanagarContractors Welfare Association is not entitled to maintain theWrit Petition. No aggrieved contractor who has suffered rockrecovery from his bills is before this Court. No doubt anassociation like the petitioner may have general programme ofprotecting the interest of the members. When it comes torecovery, may be rock recovery, from the bills submitted by anindividual contractor, the aggrieved person is the individualcontractor and not the association. For instance, if there is anydispute regarding payment of a bill by the Water Board to theContractor, the association cannot seek a reference toarbitrator nor can it file a suit on behalf of t