1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present: THE HON’BLE JUSTICE PARTHA SARATHI SEN WPA 6653 of 2007 With CAN 3 of 2024 Lalbagh Tenants Welfare Association & Anr. Versus The State of West Bengal & Ors. For the petitioners : Mr. Debdutta Basu, Mr. Kingshuk Mondal. For the State Mr. Tanoy Chakraborty, Mr. Saptak Sanyal. Heard on : 06.03.2025 Judgment on : 06.03.2025 PARTHA SARATHI SEN, J: 1. By filing the instant writ petition, the writ petitioners had prayed for issuance of appropriate writ or writs against the respondent authorities, more specifically, against the respondent no.2 commanding him not to demand any rent from the tenants of Murshidabad Estate contrary to the amount fixed prior to enactment of the Murshidabad Estate (Management of Properties) and Miscellaneous Provision Act 1980 (hereinafter referred as the said Act of 1980 in short). 2. On careful perusal of the instant writ petition, it appears to this Court that the writ petitioner no.1 is an Association that is ‘Lalbagh Tenants 2 Welfare Association’ and the writ petitioner no.2 is the Secretary of the writ petitioner no.1 Association. 3. In course of his submissions, Mr. Basu, learned advocate appearing on behalf of the writ petitioners at the very outset draws attention of this Court to Page No. 26 the instant writ petition being a copy of certificate of registration of societies. It is submitted by Mr. Basu that all the tenants of the Murshidabad Estate have formed the writ petitioner no.1 Association and the said Association was registered under the West Bengal Societies Registration Act, 1961. Drawing attention to Paragraph 1 of the instant writ petition, Mr. Basu submits that the writ petitioner no.1 association uses to look after the problems, difficulties and benefits of its member who are the tenants of the Murshidabad Estate. 4. In his next fold of submissions, Mr. Basu draws attention of this Court to Page No. 32 to 42 of the instant writ petition wherefrom it reveals that the respondent no.2/Estate Manager of the Murshidabad Estate on different dates demanded arrear rent from different tenants of the said Estate. It reveals from the said notices that in the last paragraph of such notices it has been stated inter alia that in the event the tenants failed to clear their dues towards arrear rent, appropriate action will be taken against the said tenants. 5. At this stage, Mr. Basu draws attention of this Court to Page No. 30 and 31 of the writ petition being a copy of the Memo Dated 08.12.2006 wherefrom it reveals that the said respondent no.2/Estate Manager of Murshidabad wrote a letter to the writ petitioner no.2 being the Secretary of the writ petitioner no.1 Association wherein it has been clearly indicated by the respondent no.2 that as per assessment made by the Land Acquisition Collector the said Estate Officer in terms of the said Act 3 and the Rules made thereunder accepted the assessment of rent as made by the Land Acquisition Collector and the said Estate Officer shall consider the said rate of rent as fixed by the Land Acquisition Collector as approved rent to be payable by the tenants of the said Estate. It is further submitted by Mr. Basu that the said findings of the respondent no.2 is erroneous and has got no legal basis at all and thus the instant writ petition has been filed. 6. This Court has meticulously gone through the entire materials as placed before this Court, more specifically, the copy of the demand notices lying at Page 32 to 42 of the instant writ petition. 7. On careful consideration of the materials as placed before this Court it appears to this Court that the instant writ petition has not been filed by the tenants of the said Estate in their individual capacities and on the contrary, the writ petitioner no.1 Association through its Secretary who is the writ petitioner no.2 has/have filed the instant writ petition in a representative capacity. Considering such situation, this Court at the very outset, proposes to look as to whether the writ petitioners have any locus to file the instant writ petition or not. 8. While answering to the question as raised by this Court during hearing, Mr. Basu, took me to the order dated 14.05.2007 being the very first order passed by a Co-ordinate Bench in the instant writ petition whereby and whereunder a restraint order was passed by the said Co-ordinate Bench directing the respondent authorities not to disturb the possession of the writ petitioners. Mr. Basu submits that neither the point of maintainability nor the locus of the writ petitioners was raised at the time of first hearing of the instant writ petition and therefore, it would be unjust to raise the point of locus of the writ petitioners at the stage of 4 final hearing when exchange of affidavits between the parties are complete. It is further submitted by Mr. Basu that even in their affidavit in opposition, such point was not taken by the respondent authorities. 9. Mr. Basu thus submits that the instant writ petition may be disposed of on the basis of its merit. 10. This Court is in respectful disagreement with the submission of Mr. Basu since the question of locus of the writ petitioners has been raised by this Court and not on behalf of the respondents. This Court considers that since this is a serious question of law, the same can be raised at any point of time. 11. In order to come to a logical conclusion with regard to the locus of the writ petitioners to file the instant writ petition, this Court at the very outset proposes to look to the provisions of the Order I Rule 8 of the Code of Civil Procedure and the same is quoted herein below: “8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,- (a) One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. 5 (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended under sub-rule (1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. “[Explanation. For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.] 12. As rightly pointed out by Mr. Basu in course of hearing that strict application of the Code of Civil Procedure is not required in a writ petition. However, this Court has got no hesitation that the principle analogous to the Code of Civil Procedure squarely applies in a writ petition. 13. On careful consideration of the provision of Order I Rule VIII of the Code of Civil Procedure, it reveals to this Court that it is the intention of the legislature that in a suit/proceeding which has been filed in a representative capacity, the foremost condition that is to be satisfied that the numerous persons have the same interest in the said suit/procedure. 6 The said provision clearly mandates that such suits can be filed/be defended only with the permission of the Court and while granting such permission, the Court must be objectively satisfied that such representative suit/proceeding as sought to be filed and/or as sought to be defended for the interest of all person so interested. It further appears that in the event Court grants a permission, the Court shall ensure that a notice of institution of the suit must be given at the cost of the plaintiffs to all persons so interested either by personal service or by public advertisement in the event personal service is not reasonably practicable. 14. Admittedly, at the time of filing of the instant writ petition, no permission has been sought for by the writ petitioners to file the instant writ petition in a representative capacity and no materials can be placed before this Court to substantiate that notice/notices have been served upon all the members of the writ petitioner no.1 Association. 15. At this juncture, this Court proposes to look to the reported decision of Ramchander Sunder & anr. – Vs. – Union of India & Ors. Reported in (1999) 9 SCC 105 wherein the Hon’ble Apex Court held thus:- “1. This is a writ petition of 1988. In para 1 thereof, it is averred that it is filed by the individual petitioner in a representative capacity. It is not disputed that no application for leave under Order 1 Rule 8 of the Civil Procedure Code was made, no leave was obtained and no publication in this behalf was effected. Learned counsel for the respondents, therefore, submits that the petition in a representative capacity is not maintainable. Learned counsel for the petitioner submits that the original petitioner has been substituted by another petitioner pursuant to an order of this 7 Court, that the petition has been admitted and that, therefore, it must be proceeded with as being a petition in a representative capacity. 2. It is for the petitioner to make an application under Order 1 Rule 8. It is not for the court to see at the time of admitting the petition whether it is in a representative capacity or otherwise. Therefore, this writ petition in a representative capacity is not maintainable. It can be proceeded with insofar as the individual substituted petitioner is concerned. 3. Learned counsel for the petitioner submits that it cannot be proceeded with in an individual capacity and that, in the circumstances, it should be adjourned to enable the petitioner to take steps under Order 1 Rule 8. 4. This is a petition of 1988 and the application under Order 1 Rule 8 should have been made immediately after it was filed. The application is refused. 5. The writ petition is dismissed. There shall be no order as to costs.” 16. In view of the facts as discussed in the foregoing paragraphs and in view of the proposition of law as enunciated in the reported decision Ramchander (supra), this Court holds that the instant writ petition is not maintainable. 17. At this juncture, I once again propose to look to the copies of the different notices as has been annexed to the writ petition from Page 32 to 42. It appears to this Court that from Page No. 32 to 41, the respondent no.2 Estate Manager has claimed payment of arrear rent from different 8 tenants who according to the said Estate Manager were found to be defaulter in payment of rent since in the said notices it has been clearly mentioned that the said tenants had made payment up to certain month of the certain year and thereafter made no payment was made at all. 18. However, on perusal of the Page No.42 of the instant writ petition, it reveals that the said Estate Manager under cover of his letter dated 06.03.2007 had demanded enhanced rate of rent as per assessment of the Special Land Acquisition Officer. It thus appears to this Court that by no stretch of imagination it can be said that the tenants upon whom such notices have served have same interest. 19. This Court considers that when a person enters into a tenancy agreement with his landlord, the relationship between the said landlord and tenant is governed under the terms of the tenancy agreement and of course under the provision of the law of the land regulating the relationship between the landlord and tenant like; Transfer of Property Act, West Bengal Premises Tenancy Act, 1997, the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 20. It thus further appears to this Court that in the event a tenant is found to be defaulter in payment of rent, the landlord can sue against the tenant either for his eviction on the ground of default of payment of rent or he may sue for recovery of the rent wherein the association formed by the tenants of an Estate is neither a necessary nor a proper party. In the decision of Aliyathammuda Beethathebiyyappura & Anr. Vs. Pattakal Cheriyakoya & Ors. reported in (2019) 16 SCC 1 the Hon’ble Apex Court while dealing with the provision of Order I Rule VIII of the Code of Civil Procedure had expressed the following: 9 “The object of Order I Rule VIII is to facilitate the decision of question in which a number of persons are interested without recourse to ordinary proceeding.” 21. In another reported decision S. N. D. P. Sakhayogam Vs. Kerala Atmavidya Sangham and Ors. reported in (2017) 8 SCC 830 the Hon’ble Apex Court further held that the provision of Order I Rule VIII Code of Civil Procedure is meant essentially for the benefit of public at large for grant of any relief. 22. Keeping in mind the proposition of law as enunciated by the Hon’ble Supreme Court, if I look to the facts as involved in the instant writ petition, it appears to this Court that the writ petitioner no.1 being the association of the tenants under the respondent authorities and the writ petitioner no.2 being its secretary have miserably failed to show a common interest of its members over the subject matter of the instant lis. The tenancy of the different tenants under the said estate are neither joint tenancy nor tenancy-in-common. On the contrary such tenancies are independent in nature. Some tenancies may be residential and some may be commercial in nature. Some tenancies may be for a fixed period, some may be without having an particular period. On account of creation of tenancy, a tenant may have some interest over his tenanted property but it cannot be construed that the tenants of an estate have same interest over the entire estate. 23. This Court considers that demand by a landlord from his tenant the arrears of rent even the enhanced rate of rent cannot be a common question which are required to be answered in a writ petition which has been filed in a representative capacity. 10 24. This Court thus finds no merit in the instant writ petition. Keeping in mind that on account of pendency of the instant writ petition, the respondent authorities who are the functionaries of the State had to suffer a huge financial loss in public exchequer this Court while dismissing the instant writ petition imposes a Cost of Rs. 2 lakhs upon the writ petitioners which is to be paid in the public exchequer positively within 30 days from today. 25. With the aforementioned observations, the instant writ petition is disposed of. 26. Interim order as passed earlier in connection with the instant writ petition stands hereby vacated. 27. Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible. (Partha Sarathi Sen, J.) Later 28. After passing of the aforementioned judgment, Mr. Basu, learned Advocate appearing on behalf of the writ petitioner has prayed for stay of the operation of the judgment as passed by this Court today. 29. Prayer for stay is considered and is disallowed. (Partha Sarathi Sen, J.)