Gram Panchayat Adhikari Sangh vs State of U.P. and Others

Heard learned Counsel for the Appellant and learned Additional Chief Standing Counsel and perused the record.

With the consent of parties, we dispose of this appeal at the admission stage. The present appeal has been preferred against the impugned judgment and order dated 2.5.2011 passed by Hon''ble Single Judge in Writ Petition No. 2195 of 2011.

The Appellant-Gram Panchayat Adhikari Sangh, District Ambedkar Nagar, U.P. through its President challenging the action of the Respondent with grievance that the Chief Development Officer by impugned order dated 29th Jan, 2011 allocated work of Gram Panchayat Adhikari in violation of order dated 10th Jan., 2011 passed by District Magistrate, Ambedkar Nagar. Hon''ble Single Judge has observed that since the Appellant has not filed any resolution authorizing the President of the Association to approach this Court, the writ petition on behalf of Association is not maintainable. Apart from it, the Hon''ble Single Judge further held that the controversy in question is of individual in nature and the person aggrieved by the action of the Respondent may approach this Court in his/her individual capacity.

It has been submitted by the learned Counsel for the Appellant that the District Magistrate, Ambedkar Nagar by order dated 10.1.2011 took a decision to allocate work equally amongst all the Gram Panchayat Adhikari. Order passed by the District Magistrate has been violated by the Chief Development Officer by the impugned order dated 29.1.2011 and some of the Gram Panchayat Adhikari have been asked to look after the work of more than eight gram panchayats. So far as the first submission of the Appellant''s counsel that the writ petition preferred by the association is maintainable, carries weight. Along with the writ petition, the Appellant has filed copy of the resolution of the association attached as Annexure No. 3 to the writ petition which has been admitted by the learned Additional Chief Standing Counsel and submitted that the resolution was annexed with the writ petition filed before the Hon''ble Single Judge. Hence, the observation made by the learned Single Judge that the Appellant association was not authorized to file the writ petition to seek relief is based on unfounded ground.

Apart from this, in the case reported in 1983 LCD 10 Allahabad High Court (Full Bench) Umesh Chandra Vinod Kumar v. Krishi Utpadan Mandi Samit, Bharthan and Ors. while capsuling the law on the point had observed as under:

Our answer to the referred questions is as follows:

Q.1. Whether an association of persons, registered or unregistered, can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?

Q.2. Whether a single writ petition under Article 226 of the Constitution is maintainable on behalf of more than one Petitioner connected with each other as partners or those who have no other legs subsisting jural relationship, where the question and fact, involved in the Petitioner, are common?

Q.3. In case the answer to question No. 1 is in the affirmative, whether only one set of counter-fees would be payable on such petition or each such individual Petitioner has to pay counter-fees separately;

Q.4. In case answer to question No. 1 is in the negative, whether the defect of misjoinder of several Petitioners in the petition can be cured by requiring each such Petitioner to pay separate court-fees?

Q.5. Whether the petition is maintainable for questioning similar actions taken by different Mandi Samitis independently of each other in cases where the aggrieved party seeks relief against each such Committee on identical grounds?

A.1. The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights-(i) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position ("little Indians")

(ii) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busy body, i.e., it has a special interest in the subject-matter.

(iii) Where the rules or regulations of the association specially authorize it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.

In other cases an association, whether registered or unregistered, cannot maintain a petition under Article 226 for the enforcement or protection of the rights of its members, as distinguished from the enforcement of its own rights. A.2. A single writ petition under Article 226 of the Constitution by more than one Petitioner, not connected with each other as partners or other legally subsisting jural relationship, is maintainable where the relief arises from the same act or transaction and there is a common question of law or fact or where though right of claim does not arise from the same act or transaction, the Petitioners are jointly interested in the causes of action. A.3. Where a single writ petition by an association or by more than one person is maintainable, then a single set of court-fees would be payable. Else, each Petitioner is liable to pay separate court-fees.

A.4. The technical defect of misjoinder of Petitioners can, in the discretion of the Court, be cured by each Petitioner paying separate court-fees. A.5. Our answer to this question is in the affirmative.

A plain reading of the answers given by the Full Bench to the questions to it shows that in case members of an association are themselves unable to approach the Court by reason of poverty, disability or socially or economically disadvantaged position then the writ petition may be preferred by an association. Further, the Full Bench held that in case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busy-body, i.e. it has a special interest in the subject matter.

Full Bench further held that where the rules or regulations of the association specially authorize it to take legal proceedings on behalf of its members then association may approach.

In the present case members of Association itself had took a decision permitting the Appellant to prefer the writ petition which could not be considered by Hon''ble Single Judge while dismissing the writ petition by the impugned order. While dismissing the writ petition, the Hon''ble Single Judge has not discussed the ratio of Full Bench in Umesh Chandra Vinod Kumar v. K.U.M. Samiti (supra). Once the Full Bench judgment has been referred by the Appellant''s counsel then it was obligatory on the part of the Hon''ble Single Judge to look into the case and consider the same with finding as to how and in what matter the Full Bench judgment is not applicable to the facts and circumstances of the case. In the hierarchy of system, we are bound by the judgment of the Full Bench of this Court. Even coordinate Bench''s Judgments are binding. Only option open to this either to distinguish it or declare perincurium to the law settled by the Supreme Court or violative of any provision or follow the same in letter and spirit.

In the present case since the Hon''ble Single Judge while dismissing the writ petition had not expressed opinion as to how the Full Bench is not applicable, there appears to be apparent error on the face of record.

Moreover, since the District Magistrate while passing the order dated 10th Jan., 2011 had regulated the work of the District providing therein that the work to the Gram panchayat shall be distributed equally then it was not open to the Chief Development Officer to take conflicting decision, more so, when the District Magistrate is the higher authority in the hierarchy of system. In the matter of governance, the lower cadre is bound by the higher cadre with regard to distribution of work or other related matters. Of course, if the Chief Development Officer had not agreed with the order passed by the District Magistrate, then he should have approached the District Magistrate itself or he should have gone to the higher authorities for modification of the order passed by the District Magistrate. It was not open to the Chief Development Officer to take a decision contrary to the decision taken by the District Magistrate. In case the lower cadre is permitted to move in his/her own way, ignoring the order/circular issued by the government or the order passed by the higher authorities, then it shall be against the principle regulating the system of governance in the democratic polity.

In view of above, being disagree with the findings recorded by the Hon''ble Single Judge, we allowed the appeal and set aside the judgment and order dated 2nd May, 2011 and matter is remitted back to the Hon''ble Single Judge to decide the controversy afresh on merit after providing due opportunity of hearing to parties.

Since no counter affidavit has been filed, learned Chief Standing Counsel is directed to file counter affidavit within three weeks, rejoinder affidavit, if any, within one week thereafter.

The case shall be listed before appropriate Bench in the third week of July, 2011.

The appeal allowed accordingly.