Dismissed

Hotel & Bar (FL3) Association v. the Secretary to Govt.

Madras HC11 Feb 2014WP(MD)/2189/2014

Case brief

AI extract

What is this about?

The Madras High Court dismissed a writ petition filed by a hotel and bar association challenging an amendment to the Tamil Nadu VAT Act. The court held that the association lacked locus standi as it was not personally aggrieved and the right infringed belonged to individual license holders, not the association.

What did the court decide?

None; the writ petition was dismissed as the petitioner was not a person aggrieved and had no cause of action.

Hotel & Bar (FL3) Association Vs the… — Constitutional and Fundamental Rights | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.02.2014 CORAM :

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THE HONOURABLE MR.JUSTICE R.SUDHAKAR and

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THE HONOURABLE MS.JUSTICE V.M.VELUMANI

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Writ Petition (MD) No.2189 of 2014

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Hotel & Bar (FL3) Association of Tamil Nadu (HOBAT), Registration No.61/2012, represented by its President B.K.Sivakumar, having office at No.400, P.W.D Road, Nagercoil 629 001, Kanyakumari District. ... Petitioner

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Vs.

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1.The Secretary to Government, Commercial Taxes Department, Fort St., George, Chennai 600 009.

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2.The Special Commissioner & Commissioner of Commercial Taxes, Ezhilagam, Chepauk,

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Chennai 600 005.

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3.The Managing Director, Tamil Nadu State Marketing Corporation (TASMAC), Egmore, Chennai 600 008. ... Respondents

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Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Declaration, declaring the Amendment Act No.28 of 2013 which amends Item No.2 of the Second Schedule and the Explanation No.1 of the Tamil Nadu Value Added Tax Act 2006 with retrospective effect which was published in the Tamil Nadu Government Gazette Extraordinary dated 08.11.2013 as discriminatory and violative of Articles 14 19(1)(g) 301 & 304 (a) of the Constitution of India.

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For Petitioner : Mr.K.Soundararajan

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For Respondents 1&2 : Mr.M.Alagadevan, Special Government Pleader.

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For 3^rd Respondent : Mr.Muniasami

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ORDER

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(Order of the Court was made by R.SUDHAKAR,J. )

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We do not find any justification for the Association to file https://hcservices.ecourts.gov.in/hcservices/ such a writ petition as it is only for the person who is aggrieved by the Amendment Act who has the FL-3 licence holder, who can always

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challenge the said Act. No cause of action shown by the Association to file the present writ petition as person aggrieved.

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2.In Mani Subrat Jain and others Vs. State of Haryana and others, reported in 1977 (1) SCC 486, the Supreme Court, at paragraph 9, held as follows:-

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“9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something.”

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3.It is well settled that, in order to invoke the extraordinary remedy under Article 226 of the Constitution of India, there must be a constitutional or statutory or legal or customary right recognised under law and that there should be a infringement to his personal rights. A few decisions are extracted in this regard.

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i) In State of Punjab v. Suraj Prakash reported in AIR 1963 SC 507, a Constitutional Bench of the Supreme Court held that the existence of a right and infringement thereof, are the foundation of the exercise of the jurisdiction of the High Court under Article 226 of the Constitution. The right can be enforced under Article 226 of the Constitution must ordinarily be the personal or individual right of the applicant.

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ii) In State of Orissa Vs. Ram Chandra Dev and another, AIR 1964 SC 685 , the Supreme Court has held as follows:

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"But though the jurisdiction of the High Court under Art.226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is legally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226".

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iii)In Gadde Venkateswara Rao Vs.Government of Andhra Pradesh, 1966 (2) MLJ (SC) 87: 1966 (2) An.W.R.(SC) 87: AIR 1966 SC 828, at Paragraph 8, the Supreme Court,held as follows:

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"The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be https://hcservices.ecourts.gov.in/hcservices/ relaxed or modified."

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iv) At paragraph No.2 of the Judgement in Vinoy Kumar Vs. State of uttar Pradesh, AIR 2001 SC 1739 , the Apex Court has held as follows:

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"Para-2: Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. Fit is a matter of prudence, that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or inquiry at the instance of third party where aggrieved here is an effective legal ad organization which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for relief."

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v)After considering the above legal principles, a Division Bench of this Court, in Nadar Mahajana Sangam, Madurai through its General Secretary (For and on behalf of Shareholders of Tamilnadu mercantile bank Ltd.) Vs. Reserve Bank of India, Central Office, Department of Banking Operation Development Centre-I, World Trade Centre, Cuffee Parade, Bombay and others, reported in 2006 (1) CTC 776 , at Paragraph No.8, has held as follows:

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"The writ petition filed by the appellant cannot have any personal grievance in the matter and at best, only its members can have any grievance. It is well settled that ordinarily a writ petition can only be filed by someone who is personally aggrieved. The powers under Article 226 of the Constitution of India should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him. The relief under Article 226 of the Constitution of India is based on the existence of a right in favour of a person invoking the writ jurisdiction."

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vi)Few decisions on the aspects of exercise of power https://hcservices.ecourts.gov.in/hcservices/ under Article 226 and issuance of a Writ of Mandamus. In The State of Orissa Vs. Madan Gopal Rungta, reported in AIR 1952 SC 12, the Supreme Court at paragraph 5, held that,

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“The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the court under this Article.”

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4.For the reasons stated supra, this Court is not inclined to entertain the writ petition. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

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Sd/-

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Assistant Registrar(Crl.Side)

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/TRUE COPY/

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Sub Assistant Registrar

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