IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTEENTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT 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 Rao S/o.Sri D.V. Krishna Rao Aged 51 years. 2. M/s.Twin Cities Wine Merchants Association, C-4, Matrusri Apartments, Hyderguda, Hyderabad-29, Represented by its President Sri D.Venkateswara Rao, S/o. Sri D.V. Krishna Rao Aged 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, 4th 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, 5th 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 that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, direction or order especially in the nature of writ of mandamus declaring the action of the first respondent in calling upon the Superintendents of Excise and Prohibition in the State of Andhra Pradesh to produce the demand drafts submitted by various applicants within 24 hours of the delivery of the judgment and the Hon’ble High Court of Andhra Pradesh now pending writ appeals as illegal, arbitrary, and in excess of the powers conferred on the first Respondent under the provisions of Income tax Act, 1961 and consequently direct the Excise Superintendent to release the original demand drafts to the various applicants without complying 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 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 Andhra Pradesh due to the decisions of this Court holding certain portions of the Excise Policy of the State Government being bad ultimately paving the way for issuance of No.DDIT/U-1(2)/2004-05, dated 16-3- 2005 whereunder the Superintendents of Prohibition and Excise of the State of Andhra Pradesh were called upon by the 1st respondent, evidently representing the Investigative Agency of the Income Tax Department, to produce all the demand drafts along with the applications of the applicants within 24 hours of the delivery of the Judgment of this Court in pending Writ Petition in the manner indicated in the said proceeding purporting to exercise such power under Section 131(1) and (1A) of the Income Tax Act 1961, hereinafter in short referred to as “Act” for the purpose of convenience. The said action is challenged by writ petitioners 1 to 4. The 1st petitioner is M/s. A.P. Wine Dealers Association, represented by its General Secretary, a registered Association, the 2nd petitioner is M/s. Twin Cities Wine Merchants Association, represented by its President, an unregistered Association and yet another two viz., Sri Pentala Ramesh Babu and Sri Aravapalli Laxminarayana, who are said to be carrying on business as wine merchants. The 1st respondent is Deputy Director of Income Tax (Investigation), Unit 1(2), Hyderabad. The 2nd respondent is the Commissioner of Prohibition & Excise, Government of Andhra Pradesh. Respondents 3 to 26 are the Prohibition & Excise Superintendents in the State of Andhra Pradesh representing different Districts. The relief prayed for in the Writ Petition is for a writ of mandamus declaring the action of the 1st respondent in calling upon the Superintendents of Excise and Prohibition in the State of Andhra Pradesh to produce the demand drafts submitted by various applicants within 24 hours of the delivery of the judgment by this Court in the pending Writ Appeals, no doubt at present disposed of, as illegal, arbitrary and in excess of the powers conferred on the 1st respondent under the provisions of the Act and consequently direct the Excise Superintendents to release the original demand drafts to the various applicants without complying with the directions of the 1st respondent and to pass such other suitable orders. 2. Submissions of Sri S.Ravi, Counsel for writ petitioners : Sri S.Ravi, the learned Counsel representing the writ petitioners would maintain that the 1st petitioner is a registered Association who would be ventilating the common cause and the common grievances of the members of the Association and the 2nd petitioner is an unregistered Association whereas petitioners 3 and 4 are the persons concerned with this wine business or trade. The learned Counsel mainly concentrated his submissions on the aspect of the power, authority or jurisdiction of the 1st respondent in issuing the impugned proceeding calling upon different Excise and Prohibition Superintendents to submit the demand drafts aforesaid. The learned Counsel while making elaborate submissions had drawn the attention of this Court to the language employed in Section 131 of the Act and had compared the language of Section 131 of the Act with the language employed in Section 132 of the Act and had explained the scope and ambit of both the provisions and would contend that in the light of the stand taken by the Income Tax Department that these powers had been exercised by the 1st respondent under Section 131(1) and (1A) of the Act it can be safely concluded that this action would not be protected falling under the issuance of summons for the purpose of Section 131 of the Act. The Counsel would submit that the Investigative Agency is definitely at liberty to take action following the procedure as specified by different provisions of the Act and not beyond thereto and at any rate omnibus summons or directives to all the Excise and Prohibition Superintendents of the State calling upon them for the production of the original demand drafts and the applications exercising powers under Section 131 of the Act is impermissible under law. The learned Counsel also explained the different expressions and the words and the language employed in the provisions in this regard. The learned Counsel also would comment that even otherwise the powers specified under Section 131(1) of the Act can be exercised only for the limited purpose as specified under the Act as such and not otherwise. It is no doubt true that each applicant has a right to get his demand draft back but on that ground distinct Court fee need not be paid by each of such applicants since common cause or common grievance of the participants is being ventilated by the 1st petitioner. The mere fact that the 1st petitioner was unable to furnish the names as required by the Income Tax Department would not alter the situation in any way. At any rate, the Counsel would contend that in the light of the Rule 4-A of the Writ Rules, inasmuch as the Writ Petition is based on the common cause of action of questioning the impugned proceeding, separate Court fee need not be paid. The learned Counsel also further contended that the decisions dealing with this aspect and on which strong reliance is being placed, had never considered Rule 4-A of the Writ Rules and hence the said decisions may not be applicable in the light of the specific Rule referred to supra. The learned Counsel also while further elaborating his submissions would contend that demand draft is virtually money and at any rate it would not fall under the expression ‘document’ and even in this view of the matter Section 131 of the Act is not applicable at all. On the aspect of locus standi the Counsel would maintain that the traditional view of locus standi had undergone a change and on that technical plea the rights of the parties cannot be defeated. The Counsel also in elaboration explained the meaning of ‘document’ and the meaning of ‘negotiable instrument’ and the procedure of the Banking Department and the procedure which would be adopted by the Excise Department and the powers of the Income Tax Department in relation to the procedure of unearthing and detecting the real persons and the procedure to be followed in this regard under the provisions of the Act. When the power is non-existent under Section 131 of the Act, the power which may be available under Section 132 of the Act cannot be invoked for justifying the action initiated since it is a non-existent power. The learned Counsel also placed strong reliance on the definition of ‘money’ and the definition of ‘document’ in Random’s Dictionary. The learned Counsel also would maintain that a ‘demand draft’ is just akin to a ‘bank note’ except for some slight difference and the Counsel also made elaborate submissions on the aspect of the meaning of ‘cheque’ and the meaning of ‘demand draft’ in the context of the Banking law. Ultimately the learned Counsel would conclude that at any rate under the guise of protecting the public exchequer or under the guise that larger public interest is involved, when an action initiated by an authority like 1st respondent is totally without jurisdiction, such action may have to be held to be bad for lack of power and authority to exercise such power and hence the legal rights of the writ petitioners and the applicants cannot be defeated on such technical grounds of the plea of locus standi and the plea of non-furnishing of the details and the other like reasons. The Counsel also would maintain that when a prejudicial action is taken, the professional bodies representing the trade quite often would be espousing the cause and would be protecting the interests of the members of such society or Association and hence the Writ Petition cannot be thrown out on the ground of locus standi. The learned Counsel also placed reliance on certain decisions to substantiate his submissions in this regard. 3. Submissions of Sri S.R. Ashok, Senior Counsel appearing on behalf of the Income Tax Department : Sri S.R. Ashok, the learned Senior Counsel representing the Income Tax Department raised a preliminary objection relating to the locus standi of the writ petitioners to maintain the Writ Petition and the maintainability of the Writ Petition and also the objection relating to the payment of Court fee. The learned Counsel would maintain that in the light of the relief prayed for in the Writ Petition, the affected applicants are unknown and it is not known whether any members of the 1st petitioner Association had participated by making applications and by depositing the demand drafts and whether their legal rights are infringed at all. The learned Counsel would maintain that though specific request had been made, the Counsel representing the writ petitioners had not furnished the particulars of the members of the 1st petitioner Association and in the light of the same, the Association cannot espouse the cause of such persons, the unknown applicants. The learned Counsel also would submit that at the best, the membership of the 1st petitioner Association may be 5000 or 6000 and when 1,43,000 applicants made applications and deposited the demand drafts, this Writ Petition in the light of the same, definitely is not maintainable. Inasmuch as the particulars had not been furnished, adverse inference may have to be drawn. The Counsel would submit that it is not a common cause and separate Court fee need to be paid and the Counsel placed reliance on certain decisions to substantiate these contentions. The learned Counsel also would further submit that the State Government cannot take any unreasonable stand in the light of Article 256 of the Constitution of India. The learned Counsel would submit that this is a mode adopted by the Investigative Agency of the Income Tax Department to unearth the real persons since the applicants prima faice on the material which had been placed on record would be just name lenders or benami. In the light of the same, in the interest of protecting public exchequer, the Department had taken up this exercise and had issued the impugned proceeding for the purpose of unearthing and detecting the real persons in relation to the enormous monetary dealings involved in the form of demand drafts in the names of just several name lenders. The learned Counsel had demonstrated by producing ample material to substantiate his stand in this regard to justify the stand of the Income-tax Department in initiating such action. The learned Counsel made elaborate submissions on the aspect of locus standi and would submit that this is not a common cause of action and the applicants, as aggrieved parties, having individual cause of action, may have to approach the Court ventilating their individual grievances. The learned Counsel also would maintain that this is not a public interest litigation and inasmuch as the writ petitioners approached the Court with oblique motive for extraneous considerations to lend a helping hand to dishonest persons who are concealing their wealth, this Court cannot definitely extend its helping hand. The Counsel also made elaborate submissions relating to the scope and ambit of Sections 131 and 132 of the Act. The Counsel would maintain that too numerous persons are involved and in order to protect the exchequer which is needed since large scale fraud is involved in the monetary transactions only for the limited purpose these documents, demand drafts, were called upon and even by furnishing photostat copies of the demand drafts, the same cannot be worked out and the learned Counsel explained the difficulties involved in relation to the same. The learned Counsel also 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 seizure falling under Section 132 and the Department is interested in setting the Investigative Agency into motion while taking these documents and looking into these documents for the purpose of unearthing the real persons for the purpose of reaching at the real persons dealing with the monetary transactions. The Counsel would maintain that if the crucial material is returned to the applicants, the investigation cannot be completed by the Income tax Department. The learned Counsel had made elaborate submissions on the aspect of ‘negotiable instrument’, the procedure involved in the banking transactions and also would maintain that writ petitioners are not clear whether they had approached this Court by way of public interest litigation or adversary litigation or whether it is benami litigation or private litigation. When the writ petitioners are not clear on their stand, the cause on behalf of 1,43,000 applicants who are non-parties and who are not oppressed or depressed classes, the present relief cannot be granted. The learned Counsel made elaborate submissions relating to the criminal investigation and how the State machinery would be acting in this regard and the Tax investigation and the role of the State Government and the role of the Central Government to be played while enforcing the relevant statutory provisions 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 1st respondent at this stage would definitely jeopardize the interest of the public exchequer and hence the larger public interest may have to be taken into consideration and especially in the light of the fact that the writ petitioners had not approached this Court with clean hands by concealing the facts and by suppressing the facts and not furnishing all the particulars in the case, the relief prayed for definitely cannot be granted. Several decisions had been relied upon to substantiate his contentions. 4. Submissions of the learned Advocate General : The learned Advocate General representing the State Government would take the stand that inasmuch as a large number of 1,43,000 applicants are involved and there is procedure for the return of the demand drafts, there is a problem to the law and order situation and in the light of the same an early decision may be delivered at the hands of this Court. The learned Advocate General however made it clear that the question of interpreting Article 256 of the Constitution of India and the protections of Central Government and the State Government in this regard and the extreme stand of the break down of the Constitutional machinery may not come into play at all for the reason that the specific stand of the State Government is that in the light of the Excise Policy the applicants had submitted the applications and the demand drafts had been deposited and in the light of the decisions rendered by this Court the present novel situation arose and absolutely the State Government has no role to play and the State Government is not coming in the way of the Income Tax Department and its Investigative Agency in taking such steps which are permissible in law under the provisions of the Act. Further, the learned Advocate General would submit that taking the over-all facts and circumstances it would be just and proper to dispose of the matter at an early date. 5. Locus standi of the writ petitioners and the maintainability of the Writ Petition : While dealing with the aspect of locus standi one of us (P.S.Narayana,J) in the “Law of Writs”, 3rd Edition, at page 381, commented : “The term locus standi can be understood as legal capacity to challenge an act, an order or decision. This is one of the most vexed questions of administrative law. Where a party who has no locus standi files a petition it need not be heard on merits. The concept of locus standi is being liberalized and the scope of 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 Municipal Council, Udipi Municipal Council Vs. Vardichan As per the material available on record, it is clear that there are 1,43,000 applicants who made applications and deposited the demand drafts with the concerned Superintendents of Excise and Prohibition. It is not as though the particulars relating to those applicants who had obtained the demand drafts are not available at all and such particulars are available with the State Government and also with the concerned Banking Institutions upto some extent. Lengthy submissions were made by the learned Senior Counsel representing the Income Tax Department that inasmuch as every individual applicant has a right to get return of his demand draft, it is an individual cause of action and hence the individual Court fee is payable and on this ground itself the merits of the Writ Petition need not be considered. In this context, it may be very relevant to note Rule 4-A of the Writ Rules which reads as hereunder : “Two or more persons having a common cause of action may join 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 published in local news papers on 31st March, 1997. This notification has been challenged by all the petitioners. Therefore, the learned Counsel for the petitioner submits that since same notification has been challenged by them they have a common cause of action and therefore can join as petitioners and are also liable to pay only one set of Court fee. Different judgments have been referred to during the hearing. One of the judgments relied by the learned Counsel for the petitioner is a recent judgment of this Court in M.Thirupathi Reddy Vs. A.P. Co-op. Oilseeds Growers’ Federation Ltd (2000(4) ALD 1), in which certain petitioners had joined together and had paid only one set of Court fee. Those petitioners had been transferred by a single order and the Court while disposing of the objection with regard to the Court fee held: “There is no merit on the contention of the learned Standing Counsel for the APOILFED that a single Writ Petition 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 Writ Petition as regards all the petitioners is common. The cause of action is the refusal of the Management of APOILFED to treat the petitioners as its employees. Since the Writ Petition is grounded on a common cause of action and since common relief is sought by all the petitioners, a single set of Court fee on behalf of the petitioners is sufficient.” But, it appears that a Division Bench judgment of this Court was 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 jural relationship is established (1985(3) APLJ 376). The Court was relying on a judgment of the Supreme Court reported in Mota Singh Vs. State of Haryana (AIR 1981 S.C. 484). The matter is no longer res integra and the Supreme Court has held it in clear terms as to in which cases several petitioners joining together will have to pay one Court fee or individual Court fee. In the matter before the Supreme Court, independent truck operators had filed a Writ Petition against liability to pay tax under a particular order. Although the same action of the State had been challenged but the Supreme Court found : “It is too much to expect that different truck owners having no relation with each other either as partners or any other legally subsisting jural relationship of association of persons would be liable to pay only one set of Court fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising out of the liability to pay tax individually and the petition of each one would be a separate and independent petition and each such person would be liable to pay legally payable Court fee on his petition. It would be a travesty of law if one were to hold that as each one uses high way,