Rambalak Paswan vs The State Of Bihar
2021 Latest Caselaw 3075 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6466 of 2021
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Rambalak Paswan, S/o- Kishunadev Paswan, R/o- Village- Sarmastpur, P.O.- Sarmastpur, P.S.- Paroo, District- Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Secretary, Food and consumer Protection Department, Government of Bihar, Patna.

2. The District Magistrate (D.M), Muzaffarpur.

3. The Sub-Divisional Officer, S.D.O (West), District- Muzaffarpur.

4. The District Supply Officer, District- Muzaffarpur.

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

For the Petitioner/s : Mr.Rajiv Ranjan Singh, Advocate For the Respondent/s : Mr. S. Raza Ahmad (AAG-5). ====================================================== 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 : 06-07-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s).

"(i) To direct the concerned Respondent to take necessary and immediate steps to cancel all the licenses for opening the public distribution shops which have been allotted to many persons by flouting rules and regulations as laid down by the department of Food and Consumer Protection, Government of Bihar in the entire Muzaffarpur district in general and in my Geyaspur panchayat in particular.

(ii) To direct the concerned Respondents to take necessary and immediate steps to allot fresh licenses of such public distribution shops to the competent person/persons after cancelling the Patna High Court CWJC No.6466 of 2021 dt.06-07-2021

previously illegally allotted license by strictly following the various guidelines as laid down by the department of Food and Consumer Protection, government of Bihar,

(iii) To direct the concerned Respondents to make proper and impartial inquiry as how such licenses for opening new public distribution shops were allotted to many persons by openly flouting rules and regulations and guidelines as laid down by the Department of Food and Consumer Protection, Government of Bihar and making "defective merit list" of the public distribution dealers in the entire Muzaffarpur district in general and in my Geyaspur panchayat in particular."

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 Sub-

Divisional Officer, Muzaffarpur 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 Sub-Divisional

Officer, Muzaffarpur shall consider and dispose it of

expeditiously and preferably within a period of three months

from the date of its filing along with a copy of this order.

Statement accepted and taken on record.

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

Chief Secretary, Government of Karnataka & Ors, (2016) 2 Patna High Court CWJC No.6466 of 2021 dt.06-07-2021

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 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) 3 SCC 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 held in Union of India v. S.B. Vohra [Union of India v. S.B.

Patna High Court CWJC No.6466 of 2021 dt.06-07-2021

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 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 Patna High Court CWJC No.6466 of 2021 dt.06-07-2021

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."

As such, petition stands disposed of in the following

terms:-

(a) Petitioner shall approach the Sub-Divisional

Officer, Muzaffarpur within a period of four weeks from today

by filing a representation for redressal of the grievance(s);

(b) The Sub-Divisional Officer, Muzaffarpur 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, Patna High Court CWJC No.6466 of 2021 dt.06-07-2021

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 rises subsequently on the same and

subsequent cause of action;

(g) We have not expressed any opinion on merits. All

issues are left open;

(h) 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) Rajiv/veena-

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