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Judgment
B.K. Lahiri, J.—This is a revision from the judgment and order dated 17.7.81 passed by the Sessions Judge at Dhubri in Criminal Motion No. 6(1) 81 accepting the revision filed by the opposite party and setting aside the order of the learned Magistrate, who had declared possession of the disputed land in favour of the Petitioner in a proceeding u/s 145 Code of Criminal Procedure.
The Petitioner representing the members of the public arid the Boys Club claimed that he and others and the members of the public including boys and girls had actual physical possession of the disputed play-ground. In support of his ease some respectable witnesses came forward and deposed and confirmed the claim of the Petitioner that the members of the Boys Club as well as the members of the public were continuously using and exercising the acts of possession in the playground for 30/35 years. The right to make use of the land as playground and the place of physical exercise for the members of the public was sought to be denied by the opposite party on the plea that be had purchased the land very recently in 1979. The 1st party examined 5 witnesses in support of his case whereas no evidence at all was adduced by the opposite party. Learned Magistrate declared possession in favour of the first party, who represented the Boys Club, the students as well as the members of the public. Learned Magistrate decided that at the relevant date the 1st party men were in actual physical possession of the disputed land and accordingly declared possession in their favour u/s 145 of "the Code". The Second party had alternative remedy of instituting a suit for getting his title declared and could have asked for possession. The opposite party preferred a revision and the learned Sessions Judge who heard the revision held that the Petitioner had no locus standi to bring the action u/s 145 Code of Criminal Procedure for himself and on behalf of the members of the public including the Boys club.
I propose not to enter into the merits of the case as learned Counsel for both the parties admit that the impugned order rendered by learned Sessions Judge in revision should be set aside in view of various infirmities. Learned Counsel candidly admitted that the learned Sessions Judge did not decide the merits of the case but disposed it summarily holding that the first party bad no standing to bring the proceeding u/s 145 of the Code. Learned Counsel fur the parties submit that the tread in law on locus standi has undergone revolutionary changes and learned Judge should have considered the law laid down by the Supreme Court and decided the matter in accordance therewith Learned Counsel for both the parties pray that upon setting snide the impugned order, the matter may be remuted back to the learned Sessions Judge at Dhubri for disposal of the revision in accordance with law. As desired by learned Counsel for both the parties, upon setting aside the impugned order passed by the learned Sessions Judge, I remit the matter back to the Sessions Judge for disposal of the revision in accordance with law. However, the revision must be disposed of within one month from the date of receipt of the records.
Before parting, I would like to observe two aspects of the matter, which may be considered by the learned Sessions Judge. However, none of the observation shall be binding upon him. It would be for the learned Sessions Judge to consider as to whether the dispute will finally come to an end if the petition is dismissed on the ground that necessary parties were not added as Co-Petitioners. The second or successive petitions might come and thereby the opposite party might not get full and complete relief even if the petition 19 dismissed in his favour on the ground that the necessary parties were not added. Learned Sessions Judge shall consider whether the members of the public who deposed in favour of the Petitioner supported the claim of the public and the Boys club and if so what was the effect thereof on the issue of loons standi. It is highly desirable that in a proceeding u/s 145 of the Code the apprehension of the breach must be fully and finally settled by the final order to preserve the peace and tranquility.
The second aspect is in respect of the new trends it law on locus standi. Two types of persons seek judicial relief: First, the person aggrieved" as described in various statutes: and second, those who move the High Courts under Article 226 or the Supreme Court under Article 32 or 136 of the Constitution, those who seek injunctions or declaratory from courts or those who seek reliefs provided by other provisions such as u/s 133 of the Code of Criminal Procedure, 1973 or where maintenance of public order and tranquility are concerned. The common requisite for both categories of cases is that the person asking for relief must show that he has suffered or is likely to suffer loss or Injury, The term "parson aggrieved" came to be interpreted by the Supreme Court in Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, . Later in Adi Pherozshah Gandhi Vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, ; Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, . In Dabholkar, (supra) their Lordship have observed that the Advocates Act provided not for the protection of private rights but for the maintenance of professional conduct and morality of the legal profession, and the Bar Council represented "the collective conscience of the standards of professional conduct and etiquette" and therefore, the Bar Council was held to be an "aggrieved person", Indeed a busy body or a meddle some interloper must be excluded from the judicial process but sometimes strangers be allowed to activate the court. The court is to consider whether the applicant was a person whose right bad been infringed, whether be had suffered or likely to suffer a legal wrong or injury. It is pertinent to note that Justice V.S. Deshpande said in his learned article "Standing and Justifiability" (page 1047) as follows:
Regarding the public actions, it may be stated that the courts have not accepted the position that every member of the public is interested in the enforcement of every "jot and title" of the law. A Petitioner will have standing to sustain a public action only if he fulfils one of the two following qualifications: He must either convince the court that the dereliction of law has such a real public significance that it involves a public right and an injury to the public, interest or he must establish that he ha a sufficient interest of his own over and above the general interest of the other members of the public in bringing the action. Therefore whenever a Petitioner does not show a sufficient interest of his own. it would be necessary for the court to examine precisely the nature of the alleged injury to the public interest and whether the injury is such as can or should be remedied by the intervention of the Court.
It appears that the courts are willing to allow the Petitioner to raise questions of public interest when be also suffers along with other members of the society aver though his injury may not be specific. Thus is Municipal Council, Ratlam Vs. Vardichan and Others, the residents of a locality within the limit of Ratlam Municipality tormented by stench and stink caused by open drain and public excretion by nearby slum dwellers moved the Magistrate u/s 133 of the Code of Criminal Procedure, 1973, to require the municipality to do its duty towards the members of the public. The Magistrate directed the municipality to prepare a draft plan within six months for removing the nuisance. The order was affirmed by the High Court as well as the Supreme Court. The plea of the Municipality that it lacked fund was turned down and Krishnan Iyer, J. observed as follows:
At issue is the coming of age of that branch of public law bearing on community actions and the courts power to force public bodies under public duties to implement specific plans in response to public grievances.... Social justice is due to the people and therefore, the people must be able to trigger of the jurisdiction vested for their benefit in any public functionary like a Magistrate u/s 133, Code of Criminal Procedure. In the exercise of such power, the judiciary must be informed by the broader principles of access to justice necessitated by the conditions of developing countries and obligated by Article 38 of the Constitution.
A writ petition for mandamus to compel a municipal corporation charged with the duty of maintaining public latrines against entrusting their maintenance to a private person and allowing him to charge every person who uses it a fee of 10 paise was filed successfully by the members of the public who were rate payers-vide Surayaraz Shareef v. State of Andhra Pradesh AIR 1981 SC NOC 71 . On the emergence of community action or collective petition, Krishna Iyer, J. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, observed thus:
Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ''class actions'', ''public interest litigation'' and ''representative proceedings''- Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to fin expletive plurality of litigations. Is en affirmation of participative justice in our democracy. We have no hesitation In holding that the narrow concept of ''cause of action'' and ''person aggrieved'' and Individual litigation is becoming obsolescent in some jurisdiction.
In Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, , the Workmen of the Corporation bad invoked the jurisdiction of the Supreme Court and sought to demolish the sale of a plant which in their opinion had resulted in the colossal loss to the public exchequer and ultimately to the citizens of the country of which the Petitioners were a part. The question before the court was whether the Petitioners had "locus standi". It was held that they had such standing Krishna Iyer, J. inter alia observed:
law being a social auditor this audit function can be put into action only when some one with real public interest ignites the jurisdiction.
In P.S.R. Sadhanantham Vs. Arunachalam and Another, the Supreme Court permitted a private citizen to invoke the special power under Article 136 for leave to appeal against the acquittal of an alleged criminal. Their Lordships have held that only when the court is convinced that the public interest justifies an appeal against the acquittal and that the state has refrained from petition for special leave the stranger should be allowed to pray for leave to appeal against the order of acquittal.
In S.P. Gupta Vs. President of India and Others, It was declared that Advocates had locus standi to challenge the decisions regarding non-continuation of additional judges and transfer of High Court Judge.
There are other cases viz. National Textile Workers'' Union and Others Vs. P.R. Ramakrishnan and Others, ; Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939; Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ; Sunil Batra Vs. Delhi Administration and Others etc., . Dr. Upendra Baxi (I) Vs. State of Uttar Pradesh and Another, ; People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, .
While deciding the question as to whether the Petitioner has bad locus standi to file the application and to carry on the proceedings it would be the prime duty of the learned Sessions Judge to consider the question of right of an individual to participate in judicial process or the trend to law of "locus standi". These are my patting observations and the learned Judge may bear these in mind while disposing of the case.
However, he is not bound by any of the observations.