Bihar Yuva Adhivakta Sangh vs The State Of Bihar
2021 Latest Caselaw 4254 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.14331 of 2021
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Bihar Yuva Adhivakta Sangh, through its Founder Mr. Prashnat Kumar, presently having its office at House No. 2H/45, Third Floor, Sumitra Classes, Bahadurpur Housing Colony, Near TV Tower, Patna-800020, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar, through its Chief Secretary, Main Secretariat, Patna 800001.

2. The Principal Secretary, Department of Law, Government of Bihar.

3. Secretary, Bihar State Bar Council, Bar Council Bhawan, Patna High Court Building, Patna - 800001, Bihar.

... ... Respondent/s ====================================================== Appearance :

      For the Petitioner/s    :       Mr.Anjani Kumar
      For the Respondent/s    :       Mr.Lalit Kishore ( AG )

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE Mr. JUSTICE S. KUMAR)

(The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 24-08-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

" (i) For issuance of an appropriate writ of Mandamus or any

other appropriate writ(s) or order(s) or direction(s) commanding the

Respondent to immediately provide compensation to the families of

the advocates who have succumbed to death due to COVID 19.

(ii) For issuance of an appropriate writ of Mandamus or any

other appropriate writ(s) or order(s) or direction(s) Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

commending the Respondents to immediately provide

financial aid to the learned advocates of State of Bihar in

order to compensate for the loss of work due total closure of

courts during second wave of COVID 19 pandemic.

(iii) For issuance of an appropriate writ of Mandamus or

any other appropriate writ(s) or order(s) or direction(s)

commanding the Respondents to immediately take steps for

vaccination of learned advocates within the premises of this

Hon'ble High Court and all the District Courts of the State of

Bihar.

(iv) For issuance of an appropriate writ of Mandamus or

any other appropriate writ (s) or order(s) or direction (s)

commanding the Respondents to grant financial aid/

assistance to the young advocates who do not have regular

income for their minimal sustenance in view of partial

functioning of courts.

(v) For issuance of an appropriate writ of Mandamus or any

other appropriate writ(s) or order(s) or direction(s)

commanding the Respondents to make adequate arrangement

for training cum tutorial sessions for the learned advocates/

senior advocates to make them skilled in using online

platforms for court proceedings.

Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

(vi) For issuance of an appropriate writ of Mandamus or

any other appropriate writ(s) or order(s) or direction(s)

commanding the Respondents to provide financial aid for the

needy, handicapped or other lawyers, under sub-section 2 of

section 6 and additionally under sub-section 7 of the Bar

Council of India Rules.

(vii) Pass any other order(s) or direction(s) in the best

interest of the advocates, senior advocates and deceased

advocate.

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Secretary, Government of Karnataka & Ors, (2016) 2 SCC

653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P.[Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'

25.In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that petitioner

shall be content if a direction is issued to the Competent authority

or any of the statutory authority to consider and decide the

representation which the petitioner shall be filing within a period of

four weeks from today for redressal of the grievance(s).

Learned counsel for the respondents states that if such a

representation is filed by the petitioner, the authority concerned

shall consider and dispose it of expeditiously and preferably within Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

a period of three months from the date of its filing along with a

copy of this order.

Statement accepted and taken on record.

As such, petition stands disposed of in the following terms:-

(a) Petitioner shall approach the authority concerned within a

period of four weeks from today by filing a representation for

redressal of the grievance(s);

(b) The authority concerned shall consider and dispose it of

expeditiously by a reasoned and speaking order preferably within a

period of three months from the date of its filing along with a copy

of this order;

(c) Needless to add, while considering such representation,

principles of natural justice shall be followed and due opportunity

of hearing afforded to the parties;

(d) Equally, liberty is reserved to the petitioner to take recourse

to such alternative remedies as are otherwise available in

accordance with law;

(e) We are hopeful that as and when petitioner takes recourse to

such remedies, as are otherwise available in law, before the

appropriate forum, the same shall be dealt with, in accordance with

law and with reasonable dispatch;

(f) Liberty reserved to the petitioner to approach the Court, if

the need so arises subsequently on the same and subsequent cause Patna High Court CWJC No.14331 of 2021 dt.24-08-2021

of action.

(g) Liberty also reserved to the petitioner to make a mention

for listing of the petition on priority basis. As and when any such

mention is made, Registry shall take steps for listing the petition at

the earliest.

(h) We have not expressed any opinion on merits.

All issues are left open;

(i) The proceedings, during the time of current Pandemic-

Covid-19 shall be conducted through digital mode, unless the

parties otherwise mutually agree to meet in person i.e. physical

mode;

The petition stands disposed of in the aforesaid terms.

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J) s.hassan/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.8.2021
Transmission Date       NA