Patna High Court

Sushil Kumar Singh vs The State Of Bihar on 23 February, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.2785 of 2022
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Sushil Kumar Singh S/o Suresh Singh Resident of Village - Ashani Tole, Banshichapra, Post - Jogian, P.S. - Rasoolpur, Distt - Saran - 841212.

... ... Petitioner/s Versus

1. The State of Bihar Through the Principal Secretary, Panchayat Raj Department, Bihar, Patna.

2. The Principal Secretary, Panchayat Raj Department, Govt. of Bihar, Patna.

3. The Director, Panchayat Raj Department, Govt. of Bihar, Patna.

4. The State Election Commission Through its Chief Electoral Officer, Bihar, Patna.

5. The Chairman, Bihar Legislative Council, Bihar, Patna.

6. The Secretary, Chief Ministers Secretariat, Govt. of Bihar, Patna.

7. The Collector cum District Magistrate, Saran at Chapra and all the District Magistrates in the State.

8. The Union of India, Through its Secretary, Ministry of Rural Development and Panchayati Raj, New Delhi.

9. The Secretary, Ministry of Rural Development and Panchayati Raj, Govt. of India, New Delhi.

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

     For the Petitioner/s            :     Mr.Maheshwar Prasad, Advocate
     For Res. No.4                   :     Mr. Sidhartha Prasad, Advocate
     For U.O.I.                      :     Dr. K.N. Singh (ASG)
                                           Mr. Kuamr Priyaranjan, Advocate
     For Bihar Legislative Council   :     Mr. Aditya Prakash Sahay, Advocate
     For the Respondent/s            :     Mr.Pawan Kumar (A.C. To A.G.)

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

Date : 23-02-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s).

"(i) For issuance of appropriate writ(s)/order(s)/and/or direction(s) thereby Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

declaring the impugned action of the respondents concerned to exclude and deny the voting power to the Gram Kutchery Sarpanch and Panch of the village Panchayat in the state and denial to be enrolled in Electoral Roll of local bodies for voting in Bihar State Legislative Council Elections as being Ultra Vires to the Article 171 (3)(a) of the Constitution of India read with Section 27(2)(a) to (d) of the Representation of Peoples Act, 1950.

(ii) For consequently declaring the Gram Kutchery Sarpanch and Panch in the village Panchayats of the state as members of the state Electoral Roll for the purpose of voting in the election of members of the State legislative council.

(iii) For declaring the impugned action of the Respondents debarring the Gram Kutchery Sarpanch and Panch to vote for state legislative council election as unconstitutional as Article 171 of the Constitution of India provides that one third member shall be elected by electorates consisting of members of municipalities, District Boards and such other local authorities in the state as Parliament may by law Specify and which term other local authorities includes Gram Kutchery Sarpanch and Panch who are duly elected members of Panchayat as per section 27(2)(a) to (d) of the Representation of Peoples Act, 1950.

(iv) For consequently direction upon the Respondents concerned to notify in the state Gazette entitling the Gram Kutchery Sarpanch and Panch of the village Panchayat as enrolled members of the state Electoral Roll being local body authorities having equal voting Rights in the state Legislative Council Election.

(v) For grant of any other relief(s) in the facts and circumstances of this case."

After the matter was heard for some time, finding the Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

Bench not to be agreeable with the submissions made by learned

counsel for the petitioner, learned counsel for the petitioner,

under instructions, states that petitioner shall be content if a

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

No. 2, the Principal Secretary, Panchayat Raj Department, Govt. of

Bihar, Patna) 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 four 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

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.

Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

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 Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

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 Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

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 Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

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) 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 four months from the

date of its filing along with a copy of this order;

(c) The order assigning reasons shall be

communicated to the petitioner;

(d) Needless to add, while considering such

representation, principles of natural justice shall be Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

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 petitioner

to take recourse to such alternative remedies as are

otherwise available in accordance with law;

(g) 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;

(h) Liberty reserved to the petitioner to

approach the appropriate forum/Court, should the need so

arise subsequently on the same and subsequent cause of

action;

(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 Patna High Court CWJC No.2785 of 2022 dt.23-02-2022

in person i.e. physical mode;