DR.M.SHAMSUDEEN AND OTHERS V. THE UNION OF INDIA AND OTHERS

WP(C)/25874/2011

AI Insights

The case involves a writ petition filed by Dr. M. Shamsudeen and others, seeking a mandamus or appropriate writ to direct the respondents to legislate or amend laws to distinguish Multi Level Marketing/Direct Marketing from the definitions under the Prize Chits and Money Circulation Scheme (Banning) Act, 1978. The petitioners also sought the court to formulate guidelines for the respondents to follow in enacting the proposed legislation. The court, however, found that it does not possess the authority to compel the legislature to enact laws or frame regulations, a position supported by various precedents.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 722455 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 14-10-2011
• Assessment Year: misc
• Other Referred Cases: Joginder Kumar v. State of U.P, Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others, D.K.Basu v. State of W.B, Aruna Ramchandra Shanbaug v. Union of India and ors, State of Himachal Pradesh v. A Parent Of A Student of Medical College, Simla and others, Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and another, Syndicate Bank v. G.Venkataramani, State of Kerala v. Roshana, T.P.
• Laws Referred To: Prize Chits and Money Circulation Scheme (Banning) Act, 1978
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P NAIR; P P PADMALAYAM
• Assessee Lawyers: K KUSUMAM; N SHAMNA
• Keywords: Freedom of trade; Legislation; Multi Level Marketing; Personal liberty; Regulation; Writ of Mandamus; Direct Marketing
• Section: 2(e); 2(c)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 WP(C).No. 25874 of 2011() ------------------------- PETITIONER(S): ---------------------- 1. DR.M.SHAMSUDEEN, S/O.MUHAMMED ABDUL KHADER, AGED 52 YEARS, RESIDING AT ARAFA, NLRA.51/A, NEERAZHI LANE, ULLOOR, MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM. 2. A.RAHIM, S/O.ABDUL KARIM, AGED 38 YEARS, RAFA MANZIL, POONILATHU NAGAR, KASHAKOOTTAM,THIRUVANANTHAPURAM. 3. MANOJKUMAR M, S/O.M.MADHAVAN, AGED 34 YEARS, LEKSHMI NIVAS, KARICKAL, KARIMPINPUZHA P.O., PUTHOOR, KOLLAM-691 513. BY ADV. SMT.K.KUSUMAM SMT.N.SHAMNA RESPONDENT(S): ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, CENTRAL SECRETRIAT, NEW DELHI-1. 2. THE SECRETARY, MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION, CENTRAL SECRETRIAT,NEW DELHI-1. 3. THE KERALA STATE REPRESENTED BY THE CHIEF SECRETARY, SECRETRIAT,THIRUVANANTHAPURAM. 4. THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETRIAT,THIRUVANANTHAPURAM. 5. THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETRIAT,THIRUVANANTHAPURAM. 6. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHACADU, THIRUVANANTHAPURAM-695 001. WPC NO.25874/11 -2- 7. THE SECRETARY TO GOVERNMENT, LAW DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM-695 001. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1 &2 GOVT.PLEADER SRI.P.P.PADMALAYAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25874/2011 APPENDIX PETITIONERS' EXHIBITS EXHIBIT P1. TRUE COPY OF TRACK ID OF THE IST PETITIONER SHOWING THAT HE IS THE DISTRIBUTORS OF RMP INFOTEC PVT. LTD. DATED 31.3.2002. EXHIBIT P1(a). TRUE COPY OF TRACK ID OF THE 2ND PETITIONER SHOWING THAT HE IS THE DISTRIBUTORS OF RMP INFOTEC PVT.LTD. DATED 31.3.2002. EXHIBIT P1(b). TRUE COPY OF TRACK ID OF THE 3RD PETITIONER TAKEN IN THE NAME AS RMP ROYAL ASSOCIATES SHOWING THAT HE IS THE DISTRIBUTOR OF RMP INFOTEC PVT.LTD. DATED 06.04.2002. EXHIBIT P2. INCOME TAX RETURN OF THE IST PETITIONER FOR THE YEAR 2007-08 DATED 28.03.2008. EXHIBIT P2(a). INCOME TAX RETURN OF THE IST PETITIONER FOR THE YEAR 2008-09. EXHIBIT P2(b). INCOME TAX RETURN OF THE IST PETITIONER FOR THE YEAR 2009-2010. EXHIBIT P3. INCOME TAX RETURN OF THE 2ND PETITIONER FOR THE YEAR 2010 – 2011. EXHIBIT P3(a). INCOME TAX RETURN OF THE 2ND PETITIONER FOR THE YEAR 2009-2010. EXHIBIT P3(b). NCOME TAX RETURN OF THE 2ND PETITIONER FOR THE YEAR 2008-2009. EXHIBIT P4. INCOME TAX RETURN OF THE 3RD PETITIONER FOR THE YEAR 2009-2010. EXHIBIT P4(a). INCOME TAX RETURN OF THE 3RD PETITIONER FOR THE YEAR 2009-2010. EXHIBIT P4(b). INCOME TAX RETURN OF THE 3RD PETITIONER FOR THE YEAR 2008-2009, TAKEN IN THE NAME AS “ROYAL ASSOCIATION”. EXHIBIT P5. TRUE COPY OF MEMORANDUM OF ASSOCIATION OF RMP INFOTEC PVT. LTD. DATED 20.08.2011. EXHIBIT P6. TRUE COPY OF CERTIFICATE OF INCORPORATION OF THE COMPANY RMP INFOTEC PVT.LTD DATED 24.08.2011. EXHIBIT P7. TRUE COPY OF THE ISO CERTIFICATE ISSED TO THE COMPANY. WPC NO.25874/11 -2- EXHIBIT P8. TRUE COPY OF INCOME TAX RETURN OF THE COMPANY DURING THE YEAR 2007-2008. EXHIBIT P8(a). TRUE COPY OF INCOME TAX RETURN OF THE COMPANY DURING THE YEAR 2008-2009. EXHIBIT P8(b). TRUE COPY OF INCOME TAX RETURN OF THE COMPANY DURING THE YEAR 2009-2010. EXHIBIT P9. THE TRUE COPY OF THE RETURNS FILED BY RM PRIME EXIM,THE ERNAKULAM FRANCISEE OF THE PETITIONERS COMPANY UNDER THE KERALA VALUE ADDED TAX RULES 2005 FOR THE PERIOD FROM IST APRIL 2009 TO 31.3.2010. EXHIBIT P10. THE TRUE COPY OF JUDGMENT IN W.P(C)18975/2010 OF THE HON'BLE HIGH COURT OF KERALA, DATED 25.07.2011. EXTHIBIT P11. COPY OF THE G.O.NO.Rt(MS) NO.190/2011/FIN.DATED 12.9.11 ALONG WITH THE COVERING LETTER ISSUED IN FAVOUR OF THE 1ST PETITIONER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 25874 OF 2011 ===================== Dated this the 14th day of October, 2011 J U D G M E N T The prayers sought in the writ petition read as under:- “(A) To issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 1 to 7, to immediately frame, enact or legislate appropriate rules, amendments,bye-laws, or such other legislation, so as to distinguish the Multi Level Marketing/Direct Marketing system of business from that of Section 2(c) and 2(e) of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978. (B) To prepare and formulate, the basic guidelines and such other regulations by this Hon'ble Court itself, which are to be followed by and complied with, by the respondents/government, for making, and enacting the proposed legislation, bye-laws, or such other amendments which are sought for by the petitioners in the relief A, stated above. (C) To give immediate direction to the respondents/government, not to interfere with or otherwise deal with the petitioners' right to freedom of trade, business and practice or personal liberty in manner, except according to the procedure established by law.” 2. In support of the prayers, learned counsel for the petitioners relied on the following judgments. (1) Joginder Kumar v. State of U.P (AIR 1994 1349) (2) Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others (AIR 1989 SC 1607) (3) D.K.Basu v. State of W.B (AIR WPC No. 25874/11 :2 : 1997 SC 610), (4) Aruna Ramchandra Shanbaug v. Union of India and ors {(2011) INSC 222} (5) State of Himachal Pradesh v. A Parent Of A Student of Medical College, Simla and others (1985 AIR 910) and (6) Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and another (AIR 1966 SC 81) 3. In my view, though these judgments discusses the extensive power of the High Court to issue writ of mandamus in exercise of the powers under Article 226 of the Constitution of India, none of these judgments support the plea of the petitioner that the High Court has power to direct Legislature to enact a law or to frame a Regulation. This position is in my view well settled and does not need reiteration except to refer to the judgments in Syndicate Bank v. G.Venkataramani {(1999) 9 SCC 194} and State of Kerala v. Roshana, T.P., (AIR 1979 SC 765). Therefore, the prayers sought in the writ petition are beyond the power of the High Court and hence the writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp "