Rajesh Gond vs The State Of Bihar
2021 Latest Caselaw 4503 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.15276 of 2021
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Rajesh Gond Son of Gauri Gond Resident of Village- Kashthari, Post- Kasthari, P.S.- Durgawati, District- Kaimur at Bhabua.

... ... Petitioner/s Versus

1. The State of Bihar through Secretary of Home Department, Bihar at Patna.

2. The Principal Secretary of the Panchayati Raj Department, Bihar at Patna.

3. The District Magistrate, Kaimur at Bhabua.

4. The Deputy Development Commissioner, District- Kaimur at Bhabua.

5. The Panchayati Raj Officer, District- Kaimur at Bhabua.

6. The Block Development Officer, Durgawati, District- Kaimur at Bhabua.

7. The In charge of Panchayat Raj Officer, Durgawati, District- Kaimur at Bhabua.

8. The Present Panchayat Secretary of Village Panchayat Chehariya, Prakhand-

Durgawati, District- Kaimur at Bhabua.

9. Banarasi Ram son of Dukh Dawan Chamar resident of Village- Pipariya, P.O.- Pipariya, P.S.- Mohania, District- Kaimur at Bhabua. (Retired Panchayat Secretary of Chehariya Panchayat)

10. Ram Pyare Ram son of Lullu Ram resident of Village- Sihoriya, Post-

Chand, P.S.- Chand, District- Kaimur at Bhabua. (Former Panchayat Secretary of Chehariya Panchayat)

11. Smt. Kumari Vandana wife of Sri Dev Lal Chaudhary, Mukhiya of the Village Panchayat Chehariya, Village- Panchayat Chehariya, Prakhand- Durgawati, District- Kaimur at Bhabua.

12. Sri Dev Lal Chaudhary (Husband of the respondent No. 11) son of Sri Keshaw Pasi Village- Chehariya, Post- Durgawati, P.S.- Durgawati, District- Kaimur at Bhabua.

13. The Officer-in- Charge of Police Station Durgawati District- Kaimur at Bhabua.

14. The Sub-Divisional Officer, Mohania, District- Kaimur at Bhabua.

... ... Respondent/s ====================================================== (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.) Appearance :

For the Petitioner/s : Mr.Rajani Kant Pandey, Advocate For the Respondent/s : Mr. P.N. Shahi (AAG-6) ====================================================== Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) Date : 07-09-2021

Heard learned counsel for the parties.

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

"That this is a Public Interest Litigation is beinf filed on behalf of the petitioner for issuance a writ, order or direction including a writ in the nature of mandamus commanding the respondent No. 1 to 5 to take appropriate action against the respondent no. 9 to 12 regarding the embezzlement of the government money/fund of rupees one Crore twenty Seven Lakh Seventy one thousand three Hundred thirty one under the scheme of Fifth state finance commission and fourteen State Finance Commission under different schemes for chehariya Panchayat, Prakhand Durgawati, District Kaimur at Bhabua and direction may be issued to the respondent no. 13 to institute as first information report against the respondent no. 9 to 12 and investigate the matter under the letter No. 31 dated 29.1.2021 issued by the Block Development Officer, Durgawati to the respondent no. 13 and/or may be pass other and further order which the petitioner is entitled to."

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

Chief 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 Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

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. 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 Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

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 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 Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

counsel for the petitioner, under instructions, states that

petitioner shall be content if a direction is issued to the

authority concerned 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 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 Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

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 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 Patna High Court CWJC No.15276 of 2021 dt.07-09-2021

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) ranjan/-

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