Amitava Lala, J.
1. The Tenant's Welfare Association petitioner No. 1 herein made this writ petition by the pen of one Sri Mahendra Kumar Sanghai, respondent No. 2 herein claimed to be the Secretary of such Association. Admittedly the petitioner No. 1 Association is not the tenant of the premises in question. A list of tenants has been annexed claiming that the petitioner No. 1 is representing such tenants. But neither they have not made parties to the writ petition nor they have filed individual Court fees for making joint writ petition under a self same cause of action. Naturally, the private respondent being the owner of the property challenged the locus standi of the writ petitioners.
2. Mr. Ajit Kumar Panja, learned senior counsel, appearing for the respondents cited two judgments of this High Court one of which was delivered by a single Judge and another is delivered by a Division Bench of this Court.
3. In : AIR1990Cal176 (Sand Carrier's Owners' Union and Ors. v. Board of Trustees for the Port of Calcutta and Ors.) a single Judge of this Court held that unincorporated associations are not legal persons and as such writ petitions are not maintainable. An association can be formed to protect the interest of consumers, tenants or other groups with the common interest but such group cannot move writ application. The writ petition, at the instance of an association, is not maintainable where the association itself is not affected by any order.
4. In 1993(2) CLJ 99 (Siliguri Inter District Minibus Owners' Association and Ors. v. Sri Bijon Krishna Bhowmick) a Division Bench in which such single Judge was also Member of the Bench accepted such view point. In paragraph therein such Division Bench observed that the member of such association may be affected by common order and may have common grievance but for the purpose of enforcing the rights of the members writ petition at the instance of such association is not maintainable.
5. So far as the merit of the case is concerned, I find the challenge of the writ petitioners are the two notices issued by the Executive Engineers (C)/ Bldg. Borough under IV and V on 24th January, 2002 and 5th March, 2002 under Section 411(1) and Section 411(2) respectively of the Calcutta Municipal Corporation Act, 1980. First notice was addressed to Sri Amar Chand Lakhotia and Ors. being constituted Attorney of Sri Ramesh Kumar Lakhotia. It appears that they are the private respondents herein. The second notice was issued addressing the same person as well as all other occupiers of 263, Rabindra Sarani, Calcutta-700 007, the premises in question.
6. The scope of the Section 411(1) is to cause a written notice to be served on the owners and to be put on some conspicuous part of the wall or building or served on the occupier if any, of the building requiring such owner or occupier forthwith to demolish, repair or secure such wall or building or thing as the case may require. So far as Sub-section 2 is concerned, the Municipal Commissioner may cause a proper hearing or fence or other means of protection to be put up at the expense of the owner of such wall or building for safety of the public or the inmates thereof, and, may, after giving them such notice as the Municipal Commissioner may think necessary, require the inmates of the building to vacate it.
7. According to the petitioners, to bypass the right of tenancy which has been created in favour of the tenants under the original landlord, the private respondents have taken the recourse of the provisions of the Calcutta Municipal Act, in connivance with the authorities and got issuance of such notices to demolish the building for which the tenants will be the sufferer. Moreover, the notices have been issued by the Executive Engineer which is supposed to be issued by the Municipal Commissioner as per the Act. The power of delegation has been provided under Section 48(4)(b) under which the Executive Engineer might have power for issuance of notice under Section 411(1) but not under Sub-section (2). However, such submission was converted by the respondents by saying that the power of delegation as per the provision of the section cannot be said to be restricted in respect of Section 411(1) but it is wide enough to include the provisions particularly Sub-section (2). To satisfy the test, he has shown me the Building Permit Manual of the Calcutta Municipal Corporation and drawn my attention to the circular No. 9 of 1985-86 dated 3rd July, 1985, where I find that the Deputy C.A. being an officer of Calcutta Municipal Corporation has been delegated under both the sections and such post is renamed post of Executive Engineer. Therefore, such dispute in respect of power of delegation cannot be sustained. Therefore, the remaining question is in respect of the locus standt of the writ petitioners and suffering of them by the service of the notice.
8. Mr. P.K. Mallick, learned senior counsel, appearing for the petitioners has drawn my attention to satisfy the test of the Court in respect of moving the joint writ petition by the 140 tenants who are the members of the petitioner No. 4 as regards their respective units at the said building to develop the case by saying that, in effect, the writ petition is made by 140 tenants.
9. He cited a judgment reported in : (1981)ILLJ209SC (Akhil Bharatiya Shshit Karmachari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association etc. v. Union of India and Ors.) from its paragraph 63 to establish that the Supreme Court accepted a writ petition of an unorganised association under Article 32 of the Constitution of India upon holding the view that although 'class actions', 'public interest litigation' and 'representative proceeding' would be the broad-based people oriented litigations indeed large number of Indians seek remedies in Courts through collective proceedings, instead of being driven to expensive plurality of litigations. Thus, Three Judges Bench of the Supreme Court held that narrow concept of 'cause of action' and 'person aggrieved' and 'individual litigation' is becoming obsolete conception. However, learned Attorney General, therein conceded to the position by putting no objection to the question of maintainability of the writ petition by the non-organised association. Therefore, the judgment delivered by a single Judge or the Division Bench of this Court as above becomes obiter dictum.
10. He also cited : [1975]1SCR321 (Andhra Industrial Works v. Chief Controller of Imports and Ors.) from its paragraph 8 to satisfy that a writ by a firm is maintainable by holding that it is to be deemed to have been filed by all the partners who are citizens of India. There also I find the writ petition was filed before the Supreme Court under Article 32 of the Constitution of India.
11. He also cited : AIR1968Bom91 (The Sakharikherda Education Society, Sakharkherda through the Secretary and Ors. v. The State of Maharashtra through Secretary, Education Department and Ors.) from its paragraph 10 wherefrom it appears that a Division Bench of the Bombay High Court held that a society registered under the Act is not a Corporation but is merely an association of persons, though for certain purpose it is recognised as an entity. Therefore, such a society can sue through the President.
12. He has further cited a judgment reported in : (1983)ILLJ104SC (D.S. Nakara and Ors. v. Union of India) in its paragraph 64 to establish that society has a right to represent on behalf of its members for judicial redressal for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.
13. He further relied upon a judgment reported in : AIR1995Cal194 (The Association of Teachers in Anglo Indian School v. The Association of Aids of Anglo Indian School in India and Ors.) from its paragraph 40 to establish that a writ application is maintainable at the instance of the association. Generally the writ petitioner must be a person, would be able to apply, but it is well-known that such a principle has been relaxed in recent cases in terms whereof public interest is affected by the State action and an organisation which is interested or a member thereof is allowed to apply.
14. Mr. Mallick lastly submitted that even if the Court is not satisfied with the locus standi of the petitioners, Court can, for the ends of justice, apply the test of Order 1 Rule 10 of the Code of Civil Procedure which under normal circumstances done in the civil proceeding. On an enquiry, this Court has come to know the petitioners are ready and willing to put Court fees on behalf of the tenants if they are called upon. Before concluding, he stated that it appears from the submissions of the respondents that they are more on technicality but less on substantial justice.
15. Mr. Panja, on the other hand, replied by saying that there is a difference in between Article 32 and Article 226 of the Constitution of India. Article 32 of the Constitution of India provides remedies for enforcement of constitutional rights conferred by the part is guaranteed. Such part is part III. But right under Article 226 though made for part III is applicable both for enforcement of legal and constitutional rights. Therefore, whatever view has taken by the Supreme Court in an application under Article 32 of the Constitution of India with the concession of the learned Attorney General, cannot be applicable herein. There should be an element of legal right so as to achieve the constitutional goal under Article 226 of the Constitution of India. The right of tenant under West Bengal Premises Tenancy Act is a statutory right. The right of tenancy is heritable in nature. Therefore, whenever such right is affected by the statutory body to one, the remedy lies to him only to go before the appropriate forum made or the purpose of redressal of grievance.
16. Learned counsel, appearing for the Calcutta Municipal Corporation, adopted the argument advanced by Mr. Panja and further contended that as per Section 29(k) the control of building operations and securing or removal of the dangerous buildings and places are obligations on the part of the Corporation. The statutory authority wanted to discharge such obligation. Neither they have taken part of any of the parties, as complained, nor they are interested to do so. It is unnecessary allegation as against them without any foundation.
17. I have taken note of the submissions as made by the learned counsels appearing for the parties. Factually, there is no legal infirmities available in respect of issuance of such notices. The notices have been issued by the right persons having power of delegation and in true compliance with the provisions laid down in the Sub-section (1) and Sub-section (2) of the Section 411 of the Calcutta Municipal Corporation Act. If one has any right as against such notice of demolition under any of such sub-sections under the section he can approach the Municipal authority to give him an opportunity of hearing. I do not find any of such documents in the nature of representations to give opportunity of hearing. On the other hand, a letter was annexed showing an intention by the Association to repair the building at their own cost. Mere allegations as against the private respondents will not substantiate any cause of action in favour of the writ petitioners in the writ Court. This writ petition neither can be used as a shield nor as a sword for such purpose. Hence, whether the persons to whom the petitioners are claiming that the representative are the genuine tenants of the building or the private respondents by terrorising tried to evict them are immaterial for the writ Court. There are other forums for the same. Under the writ petition. Court is only concerned about the legality and validity of the notices and nature of issuance of the same. As I have already held, that there is no infirmity in the notices I cannot hold that the notice is bad. Therefore, the next question is in respect of issuance of the notice. Such notice is to be made to the owners and to be put on some conspicuous part of the wall or building or served on the occupiers. Here, the notice was served upon the owners and the petitioners are definitely aware of the notices, that is why a relief has been sought for as against issuance of such notice. Hence, there cannot also be any dispute as regards the issuance of the notice.
18. Therefore, there is no dispute at all which can be entertained by this Court in merit.
19. As against this background when locus standi of the petitioners has been challenged Court cannot refrain from taking cognizance in respect of such issue. The whole purpose is to get a judicial notice by the writ Court in respect of the civil dispute in between landlords and tenants which cannot be done. If the occupiers are aggrieved by the notice, they can easily raise their grievance before the Municipal authority either to give a considerable time before demolition or to give a chance of hearing to deal with the matter or otherwise deal with the repair and secure of such property. There is no occasion of invocation of writ jurisdiction. If the writ Court accepts the application of so called tenants' association then without any determination of their legal right by the Civil Court it will have a deeming effect for the future which cannot be done. It is not a case where the question of locus standi is a futile attempt to destroy the substantial justice in the garb of technicality or hypertechnicality. There is a justifiable cause. The common cause of action cannot be refused in one writ petition. But before that, Court can definitely enquire about their accrual of right. In the writ petition no occupiers' association has not come forward for the common grievance but a tenants' association has come forward. The very word 'tenant' is protected under the law applicable herein. Unless they prove themselves as tenants they cannot have any locus standi. Each and every case has distinguishing feature from other. Result of the case is depending upon such feature. A principle might have been shortest but unless and until it fits with the case such principle cannot be made applicable. It is true to say that a conjoint application cannot be thrown out if the cause of action is common accruing from their respective rights. The Court must ascertain whether such petitioner have any right to seek remedy or not. It is correct to say that a tenancy right is individual heritable right which cannot be similar with other. A tenant along with other tenants commonly can harp or getting common amenities and facilities. Then in such case, both the tenants can join hands together irrespective of formation of any association. But here the difficulty is neither the association itself is a tenant nor the petitioners accept individual tenancy right. On the contrary, the entire writ petition is full of fact about how the tenancy right has been devolved upon the tenants etc. Surprisingly too, that story is coming from the mouth of the tenants' association even not being the tenant. They have not disclosed any document how the persons whose names have been given under the list annexed to the writ petition have become the tenants individually. Thus, I do not find any reason to interfere with the matter in the application of so called tenants' association particularly when the right of tenancy is under dispute. Therefore, the writ petition stands dismissed. No order is passed as to costs.
20. However, this order will not prevent any of the occupants of the building either individually or by formation of any association, registered or unregistered, to represent the case to the authority under Calcutta Municipal Corporation for the purpose of redressal of grievance in merit arid if it is done the Municipal authority will give fullest opportunity of hearing to all concerned and pass a reasoned order thereon before taking any steps. It is recorded hereunder that this Court has not gone through the merit of the case.
Xeroxed certified copies of the judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of the judgment.
All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.