Patna High Court

Sunil Kumar Suman vs The State Of Bihar on 18 April, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5327 of 2022
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1. Sunil Kumar Suman, Son of Late Shyam Sundar Yadav, Resident of Ward No. 3, Shahpur, P.S. - Navhatta, District - Saharsa.

2. Sakila Khatoon, Wife of Late Md. Akhtar, Resident of Ward No. 3, Shahpur, P.S. - Navhatta, District - Saharsa.

3. Chiranjeev Prasad Gupta, Son of Late J. P. Gupta, Resident of Ward No. 4, Shahpur, P.S. - Navhatta, District - Saharsa.

4. Dileep Kumar Yadav, Son of Late S.N. Yadav, Resident of Ward No. 3, Shahpur, P.S. - Navhatta, District - Saharsa.

5. Dilshad Alam, Son of Late Salim Khan, Resident of Village - Fekrahi, Ward No. 7, P.S. - Navhatta, District - Saharsa.

6. Md. Alimullah, Son of Md. Minnatullah, Resident of Village Parsbanna, Ward No. 6, P.S. Navhatta, District - Saharsa.

... ... Petitioner/s Versus

1. The State of Bihar, through Principal Secretary, Water Resource Department, Government of Bihar, Patna.

2. The Principal Secretary, Water Resource Department, Government of Bihar, Patna.

3. The Engineer in Chief, Flood Control and Water Drainage, Water Resource Department, Patna.

4. The Chief Engineer, Flood Control and Water Drainage, Birpur, Supaul.

5. The Superintending Engineer, Eastern Kosi Circle, Saharsa.

6. The Executive Engineer, Eastern Embankment Division, Supaul.

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

For the Petitioner/s : Mr.Sanjeev Kumar Singh, Advocate For the Respondent/s : Mr.Vinay Kirti Singh (GA-2) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 18-04-2022

Heard learned counsel for the parties.

Petitioners have prayed for the following relief(s). Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

"1.That the petitioner is invoking the writ jurisdiction of this Hon'ble Court for issuance of appropriate writ/writs in the nature of mandamus for direction to respondent authorities to consider representations dated 13.01.2021, 05.04.2021 & 19.02.2022 filed by the petitioners and on such due consideration, to reimburse/refund the wrongly deducted amount under the head of GST @ two percent as well as security deposit @ ten percent from the payments made for the execution of work, in which there was no provision for GST tax liability and also to make payment of ten percent of approved cost of work order for the purpose of payment towards GST liabilities by the petitioners and for any other relief/reliefs which the petitioners may found to be entitled in the facts and circumstances of the case."

After the matter was heard for some time, finding the

Bench not to be agreeable with the submissions made by learned

counsel for the petitioners, learned counsel for the petitioners,

under instructions, states that petitioners shall be content if a

direction is issued to the authority concerned i.e. (Respondent

No. 4, the Chief Engineer, Flood Control and Water

Drainage, Birpur, Supaul) to consider and decide the

representation which the petitioners 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 petitioners, the authority

concerned shall consider and dispose it of expeditiously and

preferably within a period of four months from the date of its Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

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

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 Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

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 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 Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

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."

As such, petition stands disposed of in the following

terms:-

(a) Petitioners 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 four

months from the date of its filing along with a copy of Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

this order;

(c) The order assigning reasons shall be

communicated to the petitioners;

(d) Needless to add, while considering such

representation, principles of natural justice shall be

followed and due opportunity of hearing afforded to the

parties;

(e) Also, opportunity to place on record all

relevant materials/documents shall be granted to the

parties;

(f) Equally, liberty is reserved to the

petitioners to take recourse to such alternative remedies

as are otherwise available in accordance with law;

(g) We are hopeful that as and when

petitioners take 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;

(h) Liberty reserved to the petitioners to

approach the appropriate forum/Court, should the need

so arise subsequently on the same and subsequent cause

of action;

Patna High Court CWJC No.5327 of 2022 dt.18-04-2022

(i) We have not expressed any opinion on

merits. All issues are left open;

(j) 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;