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Bimal Behari Sarkar And Ors. v. State Of West Bengal And Ors.
Analytical Summary of the Opinion
Factual and Procedural Background
Six petitioners obtained a Rule from this Court challenging five orders made under section 5A of the West Bengal Estates Acquisition Act. The orders attacked were:
- Order dated March 23, 1960 in Case No. 43 of 1960, Prafulla Kumar Sarker v. Tapas Roy.
- Order dated May 14, 1959 in Case No. 42 of 1959, Prafulla Kumar Sarker v. Manke Das Rava.
- Order dated September 3, 1958 in Case No. 9 of 1958, Prafulla Kumar Sarker v. Bidyadhar Ray.
- Order dated September 3, 1958 in the case Prafulla Kumar Sarker v. Ramani Mohan Sarker.
- Order dated June 10, 1958 in Case No. 1 of 1958, Manindra Chandra Singha Sarker v. Durga Barman.
The petitioners alleged that long before May 5, 1953 they had entered into transactions (leases, sales, or settlements with chukanidars/undertenants) affecting some disputed plots and that, in part performance or in execution of such settlements, actual/physical possession had been given to the transferees, although formal deeds in some cases were executed after May 5, 1953.
They challenged provisions of section 5A of the West Bengal Estates Acquisition Act, particularly as applied to properties situated in Coochbehar, and obtained Civil Rule No. 407 (W) of 1961. They applied for leave under Order 1, Rule 8 of the Code of Civil Procedure to convert their writ petition under Article 226 into a representative petition on behalf of or for the benefit of all tenants, undertenants, raiyats and jotedars affected by proceedings under section 5A.
Legal Issues Presented
- Whether the mechanism of Order 1, Rule 8 of the Code of Civil Procedure (permitting representative suits) can be applied to an application under Article 226 of the Constitution so as to permit a writ petition to be maintained in a representative capacity.
- Whether, on the facts alleged by the petitioners, the persons they propose to represent have the same interest within the meaning of Order 1, Rule 8 such that permission to sue in a representative capacity should be granted.
- What procedural rules (Code of Civil Procedure via section 141; the Court's Rules governing Article 226 applications, including Rule 11 and Rule 30) bear on the availability of representative relief in writ proceedings.
Arguments of the Parties
Petitioners' Arguments
- The petitioners sought leave under Order 1, Rule 8, Civil P.C. to convert the writ petition into a representative petition for the benefit of many tenants, undertenants, raiyats and jotedars affected by proceedings under section 5A.
- Counsel for the petitioners relied on judicial observations in Bejoy Ranjan Rakshit v. B.C. Das Gupta and Manindra Nath Pal v. Municipal Commissioners of Bara-nagore Municipality to support the availability of a representative procedure for writ petitions.
- Factually, petitioners asserted pre-May 5, 1953 agreements and part performance/possession that, in their view, gave them grounds for relief under Article 226 challenging section 5A.
Respondents' Arguments
- Respondents contended that the observations relied upon by petitioners were merely obiter dicta or aspirational and not binding authorities for extending Order 1, Rule 8 to writ petitions.
- They relied strongly on observations in S.M. Muhammad Ibrahim v. Deputy Commercial Tax Officer (Raja Gopala Ayyangar, J.) to the effect that the right to seek a writ flows from an order affecting an individual and that similar orders against different individuals do not automatically amount to a common or class injury justifying a single representative writ petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bejoy Ranjan Rakshit v. B.C. Das Gupta, A.I.R. 1953 Calcutta 289 | Support for using Order 1, Rule 8 Civil P.C. to permit representative parties where there are many members of a body; counsel relied on the case to support representative procedure in writ context. | The Court noted this decision and the observations made by Bose J. but treated it as one of the authorities to be considered; ultimately the Court concluded that, despite such supportive observations in authorities, the present facts did not satisfy the requirements of Order 1, Rule 8. |
| Manindra Nath Pal v. Municipal Commissioners of Bara-nagore Municipality, A.I.R. 1956 Cal. 291 | Endorsement of avoidance of multiplicity of proceedings and analogical application of Order 1 Civil P.C.; recognition that practical considerations favour joined or representative proceedings where appropriate. | The Court acknowledged these observations as supportive of representative or joined petitions in appropriate circumstances, but concluded the present petitioners did not establish the requisite common interest to invoke Order 1, Rule 8. |
| S.M. Muhammad Ibrahim v. Deputy Commercial Tax Officer, A.I.R. 1956 Mad. 626 | Authority for the proposition that similar orders against different individuals do not necessarily create a class injury permitting a single representative writ; caution against extending O.1, R.8 to writ petitions. | The Court recorded that respondents relied on these observations. While the Court considered the contention, it examined the procedural rules and statutory context and reached the conclusion that representative relief was not appropriate on the facts before it. |
| Duke of Bedford v. Ellis, (1901) A.C. 1 | Interpretation that "same interest" should not be limited to beneficial proprietary interest; a representative suit is proper where there is a common interest and common grievance and relief would be beneficial to all represented persons. | The Court quoted Lord Macnaghten's statement to show that "same interest" is broader than mere proprietary rights and used that principle in construing Order 1, Rule 8's requirement of a common interest. |
| Thakur Prosad v. Sheikh Fakirulla, L.R. 22 I.A. 44 | Demonstrates limits to applying general suit-procedure provisions to other kinds of proceedings; the Privy Council observed that general provisions to follow suit procedure do not mean wholesale application where another chapter specifically governs (example: executions). | The Court relied on this reasoning to caution against an automatic or unlimited transposition of suit-procedure into writ or other original proceedings; it used the authority to frame the question whether Order 1, Rule 8 applies to Article 226 proceedings "as far as it can be made applicable." |
Court's Reasoning and Analysis
The Court proceeded in a structured manner:
- The Court first examined the text and purpose of Order 1, Rule 8, Civil P.C., noting the rule is an exception to the general requirement that all persons interested must be parties. The rule applies where (1) the parties are numerous, (2) they have the "same interest", and (3) the Court grants permission and notice is given.
- The Court analysed the terms: "numerous" is not a term of art and carries no fixed numeric threshold; "same interest" does not necessarily mean identical proprietary rights and need not arise from the same transaction. The Court quoted Duke of Bedford v. Ellis to show that "same interest" can mean a common interest and common grievance where the relief sought would be beneficial to all.
- The Court distinguished "same interest" from "same transaction", emphasising that Order 1, Rule 8 requires a common interest rather than identical origins of that interest.
- The Court examined whether Order 1, Rule 8 could apply to Article 226 writ applications. It considered section 141 of the Code of Civil Procedure (that Code procedure should be followed "as far as it can be made applicable") and referred to Privy Council reasoning in Thakur Prosad v. Sheikh Fakirulla to caution that a general directive to follow suit procedure does not automatically import all suit procedures into other distinct proceedings.
- The Court noted that Article 226 applications are original proceedings governed by the Court's own procedural rules. It cited the Court's Rules governing Article 226 applications — specifically Rule 11, which requires a distinct prayer where leave is sought to make an application in a representative capacity, and Rule 30(12) which imports, mutatis mutandis, certain civil side interlocutory rules — to show that representative applications are not wholly uncontemplated for writ petitions.
- Despite procedural avenues existing in principle, the Court turned to the facts and concluded that the persons the petitioners sought to represent did not, on the material before the Court, appear to have the "same interest" required by Order 1, Rule 8. The petitioners sought to represent also those against whom orders under section 5A had been made or proceedings had been started in respect of other properties on the theory of a common grievance about the applicability of section 5A; the Court found that such a scope was not appropriate for a joint or representative action.
- The Court considered the respondents' submission that authorities relied on by petitioners were obiter and the contention in S.M. Muhammad Ibrahim that similar orders against different persons do not create a class injury that justifies a single petition. The Court treated these authorities as part of the debate but grounded its conclusion on the absence of the necessary common interest in the present case.
Holding and Implications
Holding: The Court DISMISSED the application for leave to convert the petition into a representative petition under Order 1, Rule 8 of the Code of Civil Procedure. The Court made no order as to costs.
Implications:
- The direct effect is that the petitioners' request to proceed in a representative capacity on behalf of tenants, undertenants, raiyats and jotedars affected by section 5A proceedings was refused.
- The Court recognised that representative applications in writ jurisdiction are not wholly excluded by the procedural rules applicable to Article 226, but stressed that the threshold requirements of Order 1, Rule 8 (including a demonstrable common interest) must be met on the facts. On the facts presented, the Court found those requirements lacking.
- The opinion does not purport to lay down a broad new precedent extending or denying representative procedure to all writ petitions; rather, it applies existing principles to the present facts and dismisses the application. No broader or novel legal rule was announced beyond the application of the established tests described above.
Judge: S. N. G. (signature indicated at the end of the opinion)
1. The petitioners, who are six in number, obtained a Rule from this Court against five orders made under section 5A of the West Bengal Estates Acquisition Act, namely,
(i) Order, dated March, 23, 1960 made in Case No. 43 of 1960, Prafulla Kumar Sarker v. Tapas Roy.
(ii) Order, dated May 14, 1959, made in Case No. 42 of 1959, Prafulla Kumar Sarker v. Manke Das Rava.
(iii) Order, dated September 3, 1958, in Case No. 9 of 1958, Prafulla Kumar Sarker v. Bidyadhar Ray.
(iv) Order, dated Sept. 3, 1958, in the case between Prafulla Kumar Sarker v. Ramani Mohan Sarker.
(v) Girder, dated June 10, 1958, in Case No. 1 of 1958, Manindra Chandra Singha Sarker v. Durga Barman.
2. The petitioners allege that long before May 5, 1953 they had agreed to lease or agreed to sell some of the disputed plots of land to certain persons or had settled some of the disputed plots of land with Chukanidars or undertenants and had, in part performance of the said agreements, or in performance of the settlements, made over actual or physical possession of the disputed lands to those persons, although in some cases formal deeds of transfer or settlement were executed after May 5, 1953. They challenged the provisions of section 5A of the West Bengal Estates Acquisition Act on diverse grounds and particularly in its application to Coochbehar, where the disputed lands are situate, and obtained Civil Rule No. 407 (W) of 1961. They now apply for leave under Order 1, Rule 8 of the Code of Civil Procedure to convert their petition into a representative petition on behalf of or for the benefit of all tenants, undertenants, raiyats and jotedars, who are being aggrieved or affected by proceedings taken under section 5A of the West Bengal Estates Acquisition Act, 1953. On being questioned whether such a procedure is available to an application for high prerogative Writ under Article 226 of the Constitution, Mr. D.N Das, learned Advocate for the petitioners relied on the observations contained in the following decisions in support of the application.
(i) Bejoy Ranjan Rakshit v. B.C Das Gupta, (A.I.R 1953 Calcutta 289), in which Bose J.,
(as the Chief Justice then was) observed:
“It appears from the Statute relating to this State Medical Faculty, being Clause 2, that the State Medical Faculty consists of (a) Governing Body, (b) Fellow, (c) Members and (d) Licentiates, and it is stated by the learned Advocate for the opposite parties that the total number of the members of the State Medical Faculty is very large. Even assuming that it would be more appropriate to implead all the members of the Faculty as parties to this application, it is open to the petitioner to have recourse to O. 1, R. 8 Civil P.C and proceed against only some of the members representing themselves and all other members of the State Medical Faculty. It appears to me that the objection taken by Mr. Banerji is a purely technical one and can be easily cured by a formal amendment. Therefore, the objection cannot be considered as fatal to this application.”
(ii) Manindra Nath Pal v. Municipal Commissioners of Bara-nagore Municipality (2) (A.I.R 1956 Cal. 291) in which Sinha, J., observed:—
“Finally, Mr. Pal argues that the petitioners have different causes of action and should not be allowed to join in one application. He also takes the point that even if a joint application is maintainable, there are certain drawbacks in such an application.
In such an application, you either give relief to all or to none. If it is found that even one of the applicants is disentitled to relief, the whole application must fail. Reference has been made to American Jurisprudence Vol. 35, page 81 para. 333. In my opinion, such highly technical rules of procedure should not be incorporated in our law. This is a poor country and litigation expenses are high. Multiplication of legal proceedings should be avoided at all costs.
It would be sufficient to follow analogously the provisions of O. 1 Civil P.C However, this is a point upon which it is unnecessary to say more because it finally appears that only one petitioner has any possible ground to put forward in this application.”
3. On behalf of the respondents the aforesaid observations were sought to be got rid of on the theory that the observations were merely obiter dicta or pious wish and should not be treated as binding. Strong reliance was placed on certain observations by Raja Gopala Ayyangar, J., in the case of S.M. Muhammad Ibrahim v. Deputy Commercial Tax Officer (3) (A.I.R 1956 Mad. 626) to the following effect:—
“I agree with the Office note. Where a petitioner desires to question the validity or legality of an order, he is entitled to apply for an appropriate writ, but this right of his flows from the order affecting him.
The fact that similar orders are passed in the case of other individuals also,—be it by the same officer or authority—does not mean that the injury caused is a common or class injury so as to justify a single petition with all the individuals similarly affected joining in it as petitioners.
The provision in O. 1, R. 8 C.P.C, seeks to obviate the inconveniences arising out of a multiplicity of parties, but neither the rule nor its principle can be extended to writ petitions.”
4. It is necessary for me to examine the provision of Order 1, Rule 8 of the Code of Civil Procedure which is set out below:—
“(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from 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.
(2) 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.”
5. The provision of the Rule is an exception to the general rule that all persons interested in suit must be made parties thereto. Reasons of convenience require that in suits where there is a community of interest amongst a large number of persons, a few should be allowed to represent the whole so that trouble and expense may be saved. The provision of this Rule applies only (1) if the parties are numerous (2) they have the same interest, and (3) necessary permission is obtained from the Court and notice is given. The term ‘numerous’ is not a term of art and is not synonimous with the word, ‘innumerable’ and the Rule does not fix any limit to the number. The words ‘same interest’ in the Rule do not mean the same beneficial proprietary right in the subject matter of the suit. Such a restricted meaning of the words ‘same interest’ was condemned by Lord Macnaghten in interpreting the corresponding English Rule in the case of Duke of Bedford v. Ellis (4) (1901) A.C 1 (8). His Lordship observed:—
“Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense.”
6. The expression “same interest” must be distinguished from the expression “same transaction”. What is required under this Rule is that the parties should have the same interest; it is not necessary that their interest must arise from the same transaction.
7. Order 1, Rule 8 applies of its own force to suits. The question is whether its provision applies to an application under Article 226 of the Constitution if it otherwise satisfies the conditions of a representative action, by reason of section 141 of the Code of Civil Procedure, which reads as follows:—
“The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction.”
8. Dealing with section 647 (the corresponding section under the Code of 1882) the Privy Council observed as follows in the case of Thakur Prosad v. Sheikh Fakirulla (5) (L.R 22 I.A 44):—
“It is not suggested that section 373 (now Order 23, rule 1 C.P.C) would of its own force apply to execution proceedings. The suggestion is that it is applied by force of section 647. But whole of Chapter XIX of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of on section 647 include original matters in the nature of suit such as proceedings in Probates, Guardianships, and so forth, and do not include executions.”
9. Now, an application under Article 226 of the Constitution is in the nature of an original proceeding to be made before the Constitutional Writ Jurisdiction of this Court, except an application for a Writ in the nature of Habeas Corpus, which is to be made in the Extra-ordinary Original Criminal Jurisdiction of this Court. They are governed by procedural rules framed by this Court and Rule 1 of the Rules relating to the applications under Article 226 of the Constitution reads as follows:—
“Except as otherwise provided, all applications made under Article 226(1) of ‘the Constitution shall be governed by these rules.”
10. Rule 11 of the said Rules provides:
“The prayer to the petitioner shall distinctly state the particular Writ or Writs which the petitioner requires to be issued and the particular direction or directions which are prayed for. Where leave is asked for making an application in a representative capacity there must be a distinct prayer to that effect.”
11. Rule 30 of the said Rules reads as follows:—
“Except as otherwise specified in these rules,—
In respect of ‘Original Side’ applications the rules of the Original Side relating to interlocutory applications, and in respect of ‘Appellate side’ applications, the rules of the Appellate Side relating to Civil Revisions shall apply mutatis mutandis is respect of the following matters:—
(1) The drawing up of all interlocutory orders and the rule-nisi.
(2) The service of all orders and the rule-nisi upon the respondent or respondents. Provided however that in applications marked ‘Appellate Side’, the cost of serving interlocutory orders by post upon the respondent or respondents shall be borne by the petitioner.
(3) The appointment of next friend for a petitioner or a guardian-ad-litem of the respondent, where the petitioner or the respondent, as the case may be, is a minor or a person under disability.
(4) The entering of appearance of the respondent or respondents, including the filing of Vaka-latnamas and Power of Attorney.
(5) The making of interlocutory applications.
(6) Affirmation of affidavits.
(7) Filing of petitions and affidavits.
(8) Payments of Court-fees.
(9) Payment of process-fees.
(10) The drawing up of orders generally.
(11) Assessment or Taxation of cost.
(12) Any matter, not expressly covered by these rules.
12. Reading Rule 11 and Rule 30(12) together, it appears that an application in a representative capacity is not wholly uncontemplated under the Rules.
13. But although that is so, the persons whom the petitioners want to represent do not appear to have the same interest in this Rule. They may be interested in a particular interpretation of a particular provision of the West Bengal Estates Acquisition Act, namely section 5A, in their favour.
14. The applicants seek to represent also those against whom order under 5A of the West Bengal Estates Acquisition Act have been made or proceedings started in respect of other properties, on the theory that they may have a common grievance as to the applicability of section 5A.
15. That is not the scope for a joint action far less for a representative action.
16. For the reasons aforesaid, I dismiss this application but make no order as to costs.
S.N.G
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