Facts of the Case

The writ appeal was filed against the judgment of the learned Single Judge refusing to grant the relief sought by the petitioners on the ground that there was no registered firm in existence.

The appellants, who were the petitioners in the writ petition, specifically contended that they were partners of a firm. Their case was that loading and unloading activities carried out within the premises of the firm were being performed by the owners themselves, namely, the partners of the firm.

The appellants relied upon Ext.P9, a judgment rendered by another Division Bench of the Kerala High Court. According to the appellants, the said judgment held that partners, being owners, who had not been conferred a right to seek Rule 26A cards, could not be obstructed from carrying out loading and unloading activities in their own premises.

The learned Single Judge, however, refused the prayer on the ground that there was no registered firm in existence.

The appellants challenged that judgment before the Division Bench by filing W.A. No. 1440 of 2022.

During the writ appeal, the appellants produced Annexure A1, namely, the registration certificate issued by the Registrar of Firms. This document had not been produced before the learned Single Judge.

The appellants also pointed out that the registration under the GST Act and other documents demonstrated that the firm was in existence and carrying on business.

Issues Involved

  1. Whether the relief sought by the appellants could be refused solely on the ground that no registered firm was shown to be in existence when a registration certificate issued by the Registrar of Firms was subsequently produced in the writ appeal.
  2. Whether partners of a firm, claiming to be owners, could carry out loading and unloading work in their own business premises without obstruction.
  3. Whether the appellants’ reliance upon an earlier Division Bench judgment concerning partners, owners and Rule 26A cards required reconsideration by the learned Single Judge.
  4. Whether Annexure A1, the registration certificate issued by the Registrar of Firms, materially affected the basis on which the learned Single Judge had refused relief.
  5. Whether the precise constitution and percentage shares of the partnership remained decisive once the firm was shown to be registered.
  6. Whether the appellants should pursue a review before the learned Single Judge because the firm registration certificate had not been produced at the original writ proceedings stage.

Appellants’ / Petitioners’ Arguments

The appellants contended that they were partners of a firm and that the loading and unloading work carried out in the firm’s premises was being performed by the owners themselves, meaning the partners.

They relied upon Ext.P9, a judgment of another Division Bench of the Kerala High Court, in support of the proposition that partners who are owners, and who have not been conferred a right to seek Rule 26A cards, cannot be obstructed from carrying out loading and unloading operations in their own premises.

The appellants further argued that the firm was in actual existence and was carrying on business.

In support of this contention, they pointed out that:

  • Registration under the GST Act showed the firm’s existence;
  • Other documents also reflected that the firm was carrying on business; and
  • Annexure A1, produced in the appeal, was the registration certificate issued by the Registrar of Firms.

The appellants emphasised that Annexure A1 established the registration of the firm, although this document had not been placed before the learned Single Judge.

Respondents’ Arguments

The Kerala Head Load Workers Welfare Fund Board and the union leaders, who were party respondents, opposed the appellants’ case.

They contended that Ext.P1 was a sham document.

Their objection was particularly based on the partnership structure, as all partners except Appellants 1 and 2 allegedly had only a 1% partnership share.

It was also pointed out by the respondents that the licence stood in the name of the first appellant alone.

The judgment further records that the respondents were union leaders demanding work and that no pool worker had been impleaded.

On these grounds, the respondents opposed the appellants’ claim.

Court’s Findings

The Division Bench noted that the learned Single Judge had refused to grant the prayer sought by the petitioners on the ground that there was no registered firm in existence.

The Court considered the appellants’ specific contention that they were partners of the firm and that loading and unloading activities in the premises were being carried out by the owners, namely, the partners.

The Court also took note of the appellants’ reliance upon Ext.P9, the earlier Division Bench judgment concerning the position of partners who are owners and the issue relating to Rule 26A cards.

The Division Bench further recorded the objections of the Board and union leaders that Ext.P1 was allegedly a sham document, especially because all partners except Appellants 1 and 2 had only a 1% partnership share and the licence stood in the name of the first appellant alone.

However, the Court also considered the appellants’ submission that registration under the GST Act and other documents showed that the firm was in existence and carrying on business.

Most importantly, the Division Bench noted that Annexure A1 had been produced in the appeal and that Annexure A1 was the registration certificate issued by the Registrar of Firms.

The Court expressly observed that this document had not been produced before the learned Single Judge.

The Division Bench further observed that if the firm was registered, the exact constitution of the partnership might not be very relevant.

In those circumstances, the Court held that it would be appropriate for the appellants to move a review before the learned Single Judge.

Court Order

The Kerala High Court disposed of the matter in the following manner:

  1. The writ appeal was closed.
  2. The Court considered it appropriate for the appellants to move a review before the learned Single Judge.
  3. This course was indicated because Annexure A1, the registration certificate issued by the Registrar of Firms, had been produced in the appeal but had not been produced before the learned Single Judge.
  4. The Court observed that if the firm was registered, the exact constitution of the partnership might not be very relevant.
  5. All contentions were expressly left open before the learned Single Judge.

Important Clarification

The Division Bench did not finally adjudicate and declare an unrestricted substantive right of the appellants to perform loading and unloading work in the premises.

The Court also did not finally decide the factual controversy regarding whether Ext.P1 was a sham document or whether the partnership arrangement was genuine.

Similarly, the Division Bench did not itself reverse the Single Judge’s judgment by granting the original substantive prayer sought in the writ petition.

Instead, the crucial development was the production in appeal of Annexure A1, namely, the registration certificate issued by the Registrar of Firms. Since this document had not been produced before the learned Single Judge, the Division Bench considered it appropriate for the appellants to move a review before the Single Judge.

Therefore, the judgment should be understood as preserving the appellants’ contentions and enabling reconsideration through review in light of the firm registration certificate, rather than as a final adjudication of all rights concerning loading and unloading work.

Another important observation of the Court was that if the firm was registered, the exact constitution of the partnership might not be very relevant. This observation assumed significance because the respondents had questioned the partnership structure on the basis that most partners allegedly held only a 1% share.

Sections / Rules / Legal Provisions Involved

·         Rule 26A relating to registration cards for headload workers — The judgment specifically records the appellants’ reliance on an earlier Division Bench judgment concerning partners who are owners and who, not having been conferred a right to seek Rule 26A cards, claimed that they could not be obstructed from carrying out loading and unloading work in their own premises.

·         GST Act Registration — The appellants relied upon registration under the GST Act and other documents to contend that the partnership firm was in existence and carrying on business.

·         Registration of Firms / Partnership Firm Registration — Annexure A1, being the registration certificate/acknowledgment issued by the Registrar of Firms, was produced in the writ appeal to establish registration of the firm.

·         Writ Review Jurisdiction — The Division Bench considered it appropriate for the appellants to move a review before the learned Single Judge because the firm registration document had not been produced before the Single Judge.

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https://www.mytaxexpert.co.in/uploads/1783408334_1197compressed.pdf

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