Patna High Court

Pankaj Kumar Singh vs The State Of Bihar on 22 June, 2021

    IN THE HIGH COURT OF JUDICATURE AT PATNA
          Civil Writ Jurisdiction Case No. 10349 of 2020
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====================================================== Appearance :

For the Petitioner/s : Mr. Rajendra Naraian, Sr. Advocate Mr. Bishwajeet Singh, Advocate Mr. Kundan Kumar Singh, Advocate For the Respondent/s : Mr. Pawan Kumar, A.C. to A.G. Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) ===================================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.)

Date : 22-06-2021

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

Petitioner herein invites attention of this Court to the

alleged fraud and misappropriation in the collection of amounts

of royalty, contrary to the mining policy. What is highlighted is

the use of muscle power by the Mafia in extorting money from

persons engaged in the activity of mining and transportation of

sand from various Ghats within the State of Bihar, and more so

in the Chapra-Sonepur area. In effect such practice is causing

immense loss to the public exchequer.

If the allegations are correct, then obviously the issue

is of vital public importance. But, however, we notice that the

averments in the petition are not substantiated by any cogent

material. Also, we notice that the petitioner, prior to filing of

the instant petition, had approached the authorities way back in

the year 2018, since when a new mining rules/policy stands

framed.

Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

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

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

SCC 653, paragraphs 34 to 39 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.

Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

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. 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 Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

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."

In the aforesaid backdrop, we are of the considered view

that it would be only appropriate that the petitioner first approaches

the authorities inviting attention of the manner in which the

mechanism in place is being subverted by the stakeholders,

including the Government officers/officials.

At this stage, Shri Rajendra Naraian, learned Senior

Advocate states that the petitioner shall approach Respondent No. 2,

namely The Principal Secretary, Department of Mines and Geology,

Government of Bihar, Patna within a period of two weeks by filing

a representation, for redressal of the grievance(s).

Shri Pawan Kumar, learned Assistant Counsel to learned

Advocate General, under instructions, states that any such

representation received from the petitioner shall be dealt with and

disposed of with promptitude, in accordance with law, preferably

within a period of two months from the date of its filing along with Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

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 Respondent No. 2, namely

The Principal Secretary, Department of Mines and Geology,

Government of Bihar, Patna within a period of two weeks from

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

(b) Respondent No. 2 namely The Principal Secretary,

Department of Mines and Geology, Government of Bihar, Patna

shall consider and dispose it of expeditiously and preferably within

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

of this order;

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 Patna High Court CWJC No. 10349 of 2020 dt. 22-06-2021

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;